Grandparents’ rights are determined primarily by state law rather than federal law; therefore, each state is a little different. Colorado gives grandparents more rights than some states, but the rights of grandparents are not as broad in Colorado as they are in other states.
The grandparents’ rights issue that usually arises is whether the grandparents can demand visitation with their grandchildren, much as a divorced parent has rights to parenting time. The first difficulty a grandparent may face in establishing such visitation is getting the court to recognize what the court calls the grandparent’s “standing.” This means, does the grandparent have the right to even bring the case to court? Amazingly, just being a grandparent may not be enough.
Under the statute that controls grandparent visitation (C.R.S. §19-1-117), a grandparent can bring the issue to court only in one of the following circumstances: 1) the parents have had their marriage annulled, or the parents are legally separated or divorced, 2) legal or residential custody of the child is given to someone other than the parents, unless the child is being adopted, or 3) the child’s parent who is the child of the grandparent dies. What is remarkable about this is the number of circumstances in which the grandparent does not even have the right to bring the case to court, for example, where the parents and grandparents have a falling out, or where the child is being adopted. Many states allow grandparents to bring their case for visitation rights to court in such circumstances. Colorado is not one of them.
Apart from visitation, a grandparent may also gain custody rights for a grandchild; however, a grandparent may bring such a case to court only in circumstances even more limited than a case that asks for only visitation. To ask for custody of one’s grandchild, the child must be living with someone other than the child’s parents, or the child must have lived with the grandparents for at least six months within six months of when the grandparents take the issue to court. Thus, if the child is living with one of the parents or the child has not lived with the grandparents for six months or more, or if it has been more than six months since the child lived with the grandparents, the grandparents cannot even make their case to the court.
Once a grandparent establishes “standing” to bring either a visitation request or a request for custody, the court will decide the issue based on the “best interest of the child”. To determine the child’s best interest, the court will consider what the parents want, what the child wants, how the child gets along with the family he or she lives with or will live with, how well adjusted the child is to his or her environment, the physical and mental health of those with whom the child lives or will live, how well the potential custodian encourages the child’s relationship with his or her parents, and whether any of the parties seeking contact or custody with the child has a history of domestic violence. Making such a determination can be fairly involved. Generally, grandparents who are in difficult disputes over either visitation rights with a grandchild or custody should seriously consider obtaining the assistance of an attorney.