Colorado Child Custody

Grandparent’s Rights - The Supreme Court's Troxel Decision


In June 2000, The United States Supreme Court addressed the issue of non-parent visitation rights, including grandparent visitation, in a case called “Troxel”. At issue in Troxel was the constitutionality of a Washington State statute, which allowed grandparents and other non-parents to petition for visitation rights whenever the visitation would serve the child’s best interests.

In Troxel, the grandparents were awarded visitation rights with their deceased son’s children under the state’s broad non-parent visitation statute. The mother objected to the amount of visitation awarded to the grandparents and appealed. The Washington State Supreme Court found that the statute impermissibly interfered with a parent’s fundamental interest in the care, custody and companionship of the child. The Court held that a State may interfere with a parent’s fundamental right to raise his or her child only to prevent harm or potential harm to the child. Upon further review, the U.S. Supreme Court affirmed the decision and held that Washington’s non-parent visitation statute violated a parent’s due process right to be the sole decision maker in issues concerning their child.

Unfortunately, the U.S. Supreme Court’s decision in Troxel was based on the specific case-related facts and did not address the broader impact of non-parent visitation statutes across the country. The Troxel decision also fell short of establishing a hierarchy among the different classes of non-parents who seek visitation. Furthermore, Troxel failed to identify a uniform standard for analyzing the non-parent visitation statutes of an individual state.

Colorado’s third party and grandparent visitation statute faced a Troxel-like challenge in September 2002 in a case titled “In re Custody of C.M.” In C.M., the Colorado Court of Appeals upheld Colorado’s current visitation law. The Court found that, unlike the statute in Troxel, Colorado’s visitation statute limits standing to grandparents and permits a petition for visitation only if there is or has been a child custody case or a case concerning the allocation of parental responsibilities. The Court held that Colorado’s grandparents’ rights law does provide appropriate deference to parents’ fundamental rights to raise their children.

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