Mountain Law: Do grandparents have the right to visit their grandchildren under Colorado law? (column) |

Mountain Law: Do grandparents have the right to visit their grandchildren under Colorado law? (column)

Imagine the following scenario. Alan and Betsy’s son, Charlie, is divorced from Diane. Charlie was awarded partial custody of his children, Evan and Frankie. Alan and Betsy enjoy spending time with Evan and Frankie during the time that Charlie has custody. But Charlie passes away suddenly, and Diane now refuses to allow Alan and Betsy to continue visiting their grandchildren. Is there anything Alan and Betsy can do to obtain visitation rights?

Preliminarily, it would have been a good idea for Charlie (or Alan and Betsy themselves) to address this issue when he was getting divorced. Grandparent visitation is often overlooked during divorce proceedings with consequences like those here.

To the question at hand, all fifty states now have laws that permit grandparents to seek visitation rights with their grandchildren. The Colorado statute specifically allows any grandparent of a child to seek a court order allowing the grandparent reasonable grandchild visitation rights when there is (or has ever been) a child-custody case or if the child’s parent, who is the child of the grandparent, has died. This right to seek visitation rights also extends to great-grandparents, but not to stepparents or other third parties.

Because there is no pending case in our scenario, Alan and Betsy will have to file a new lawsuit and name Diane as a party. Even if there were a pending case, the court would not necessarily allow Alan and Betsy to intervene and may require them to file a new case anyway. That is because the grandparent visitation issue is technically separate from any other issues between the parents.

An important point is that the statute does not create an absolute right for grandparents like Alan and Betsy to visit their grandchildren. Rather, the court will only grant a request if it determines that visitation is in the best interests of the (grand)children. The court might order Alan and Betsy to participate in mediation with Diane, but, if that doesn’t result in a resolution, the court will hold a hearing where all sides will be allowed to explain their positions. The court will then issue a ruling.

To give a couple examples of Colorado cases that were unsuccessful for grandparents, one case denied visitation where the evidence showed that the grandparents used the visits, not to spend time with the children, but rather to criticize the father and undermine his authority. That actually caused the children to suffer rather then benefit from the visits.

Another case denied visitation rights where a grandmother wanted to pick up the grandchildren every Sunday morning and take them to church. Notwithstanding that the mother would not take the children to church on her own, the court would not, in essence, allow the grandmother to control the mother’s religious decisions through visitation where there was no indication that the children’s mental or physical health was at risk.

The ability of parents to control religious decisions is part of parents’ fundamental liberty interest in the care, custody and control of their children. This was recognized by the United States Supreme Court in a case called Troxel v. Granville. The basic principle in Troxel is that fit parents are presumed to act in the best interests of their children, and the government should not interfere with fit parents’ decisions respecting their children. The Colorado statute has survived at least one attack that it violates Troxel (because of the safeguards it provides).

But Alan and Betsy should be prepared for Diane’s beliefs about the best interests of the children to bear considerable weight under Troxel in court. They will have the burden to counter Diane’s stated wishes through clear and convincing evidence.

In sum, Alan and Betsy have the ability to seek visitation rights, but it will not necessarily be easy to present sufficient evidence for their claim.

Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, Colorado. He may be reached at 970-468-4953 or

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