You don’t have to persuade anyone here at the Law Office of Greg Quimby, P.C. about the importance of grandparents in the lives of their grandchildren. We know about the special relationship so many grandparents are fortunate to have with the generation twice removed. We also understand how painful it can be when a wedge creates a divide in that relationship.
Questions about grandparents' visitation rights are common ones. Colorado law does provide options for grandparents, but they are not easy legal paths to follow.
Grandparents are not presumed to have visitation rights with their grandchildren. This is a presumption established at levels as high as the Supreme Court of the United States. However, a presumption can be overcome in the right circumstances and with the right lawyer.
Basic Law on Grandparents’ Visitation
In 2000, the case of Troxel v. Granville went before the U.S. Supreme Court. The ruling struck down a law in the state of Washington that allowed third parties (i.e., grandparents) to gain visitation rights over objections by the parents. The Troxel ruling said that parents had a constitutional right to direct the upbringing of their children and their wishes are to be given due deference in any matter regarding visitation from a third party.
State courts have subsequently had to apply Troxel’s key principles. After all, the phrase “due deference” leaves itself open to a wide range of interpretations.
In 2006, the Colorado Supreme Court laid down the criteria–grandparents had to show clear and convincing evidence that court-enforced visitation was in the best interest of their grandchild. Furthermore, it would take specific circumstances–qualifying events, if you will–for a court to become involved.
The Burden of Proof
The phrase “clear and convincing evidence” is not just legalese. It’s a burden of proof standard that has real practical implications for grandparents. To understand those implications, let’s place it in the context of the other burdens of proof the court might have considered.
A preponderance of evidence is often the standard used in civil cases. It simply means that all the evidence will be introduced, and whichever side has more, will end up winning. The burden of proof does not lie with one side or the other. The judge or jury need only be 50.1 percent sure they are right to rule in a certain manner.
Beyond a reasonable doubt is the standard that applies in criminal cases. The burden of proof rests with the prosecution. Now, anyone being 100 percent sure of guilt is very difficult, but this standard is still generally presumed to require about 95% certainty on the part of the jury.
Into that considerable gap between the two comes the clear and convincing evidence standard. It falls in between the two extremes illustrated, but it’s probably closer to beyond a reasonable doubt.
That means it’s not enough for a grandparent to simply make a good case for their visitation rights to be legally protected. It’s not enough for the judge to privately think that the grandparents should have visitation. What must happen is that the judge needs to be persuaded that not only is your visitation a good idea, but it’s extremely difficult to imagine any reasonable person thinking otherwise.
There are three qualifying events that must happen for grandparents’ visitation to be heard by the courts.
- The grandchild’s parents are divorced or in the process of doing so.
- Custody of the child was given to another third party
- The parent who is the child of the grandparents passes away
We know there are any number of circumstances that cause a wedge between grandparents and their relationship with their grandkids. It’s not uncommon for grandparents and parents to have rifts over how the grandchildren are being raised in matters of religion or education. The parents, after living near the grandparents for an extended period, might relocate two hours away.
These circumstances, and more, can be the reason a grandparent is not seeing their child. But by Colorado standards, they are not a qualifying event to have visitation considered.
Grandparents can be heard by the court if their son, who was the father of the grandchildren, dies in a car accident. Perhaps the grandparents’ relationship with the son’s spouse was not particularly good. This might open up the need for visitation.
Another example might be if both parents died in a tragedy and custody was shifted to a relative of the same generation as the parents. The grandparents would be eligible to seek visitation rights in this sad circumstance.
Meeting the Burden of Proof
Clear and convincing evidence might be a high legal hurdle, but it’s not hard to think of realistic scenarios where this might be apply…
Example 1: A single parent deals with a substance abuse problem. They go into rehab when their child is three years old. The grandparents step up. They want their own adult child to be able to focus on recovery and they want their grandchild to have a safe living environment. The grandparents raise the child for ten years.
The adult child gets back on their feet. They marry someone, but this new person does not get along well with the grandparents. When the grandchild is 13 years old, their adult child and new spouse not only take the grandchild away, but bar any visitation.
The grandparents are going to have a good case for visitation rights. The best interests of the child are always paramount in cases like this. The grandparents in this particular example might even be able to make a case for outright custody. That’s beyond the scope of our discussion here, but they are certainly on solid ground to provide clear and convincing evidence for visitation rights.
Example 2: The parents of two children live with the grandparents for a few years while the young family gets on their feet financially. There’s no doubting the suitability of the adult children to parent their own kids. But after they move out, tensions that simmered when everyone was under the same roof, start to boil over. The parents bar the grandkids from going to see their grandparents.
Here’s another example of the grandparents being able to make a good case. The specific circumstances always matter, as will the length of time that has passed since the young family has moved out. But the best interests of children do presume stability. It’s not hard to show that kids who grew up with their grandparents should at least be visiting them.
Example 3: Further up, we cited an example of the parents who lived near the grandparents for an extended period of time. Then the parents move a couple hours away. The grandkids are no longer popping in for an after-school snack and the grandparents miss them. Is there a case for visitation?
This is a significant gray area. Courts will look at the amount of time the grandchildren and grandparents spent together and the quality of that relationship. In this case, as with all cases, grandparents will need to bring in witnesses that can attest to the importance of their role in the life of the grandchildren.
Grandparents have the opportunity to win visitation rights in these cases and the countless others that are similar. But it’s going to take good representation–lawyers who understand the questions to be asked, issues to be examined and witnesses to bring forward. The Law Office of Greg Quimby, P.C.fights to give you just that kind of representation. Call us today at (719) 212-4227 or contact us online to set up an initial consultation.