In a recent unpublished decision, the Colorado Court of Appeals held that a trial court cannot summarily deny grandparent intervention in a child custody case to seek grandparent family time without explanation.
Trial Court – Father Has Sole Decision-Making
In Brown, the parties agreed at dissolution that the father had sole decision and was the primary parent, while the mother had supervised visitation only. Six years later, the maternal grandmother filed a motion to intervene, seeking grandparent visitation and an evidentiary hearing, pursuant to Colorado’s grandparent visitation statute, now located at C.R.S. 14-10-124.4. (See our blog post explaining the updates to the grandparent rights laws).
The father opposed both the grandmother’s attempt to intervene, as well as any award of grandparent rights to her, and requested the appointment of a Parental Responsibilities Evaluator (PRE).
Denial of Grandparent Intervention Without Explanation
Without a hearing, the family law judge first denied the grandparent request to intervene, but then, basically treating the grandmother as an intervenor, went ahead and denied her grandparent visitation motion, finding that no facts were alleged showing that the father’s determination concerning grandparent visitation was not in the best interests of the child. (For more on how grandparent visitation works, and the presumption in favor of the parental determination, see our Grandparent Rights & Visitation article in the Colorado Family Law Guide).
The grandmother requested reconsideration under Colo. R. Civ. P. 59, but the judge denied the request, reasoning that only the parents, and not the grandparents, were “parties” to the case entitled to seek such relief, and since grandparent intervention was denied, she was not a party.
The grandmother appealed both (1) the denial of her motion to intervene, on the grounds that she was a “party” to the case, and (2) the rejection of her request for grandparent visitation without being afforded the opportunity to prove her case at an evidentiary hearing. The Court of Appeals reversed the trial court’s denial of the grandparent intervention motion.
Grandparent “Permissive Intervention” into Child Custody Case
Though Colorado law allows grandparents (including great-grandparents) to seek “grandparent or great-grandparent family time” with the children, a dissolution of marriage is a case between two spouses. The way a grandparent can get their foot in the door to even ask for family time with their grandchild is to intervene in an existing divorce or child custody case, then ask the presiding judge for visitation. Thus, either grandparent intervention or filing a new grandparent visitation case is a necessary precursor to seeking grandparent visitation.
Colorado law recognizes two types of intervention into an existing case: (1) an “intervention of right”, where the court must grant intervention, and (2) “permissive intervention,” where a court has discretion to grant a motion to intervene. A grandparent seeking to intervene to establish grandparent visitation is not entitled to do so as a matter of right, but per Brown, ¶ 12 may instead seek permission to intervene:
“when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”Colo. R. Civ. P. 24(b)(2)
Denial of Grandparent Intervention Requires Findings
But the discretion to deny intervention is not unlimited. in Brown, the trial court did not explain its denial of the grandparent’s motion to intervene, such as making a finding that there were no common issues of fact or law, or that intervention would delay or prejudice the original parties’ rights. Brown, ¶ 14.
The bulk of the trial court’s order did not address the issue of grandparent intervention, but the merits of the underlying motion for intervention. However, the Court of Appeals noted the incongruity:
“having concluded grandmother couldn’t intervene, grandmother wasn’t a party to the proceeding. We therefore don’t see — and the district court didn’t say — how the court had jurisdiction to consider and adjudicate the merits of a non-party’s visitation motion.”Brown, ¶ 15 (Cleaned Up).
The appellate court found that the trial court “abused its discretion by denying grandmother’s motion to intervene without finding or an explanation.” Brown, ¶ 16, and reversed the trial court’s denial of her motion to intervene, as well as the denial of her motion seeking grandparent family time.
Remand to Trial Court to Consider Grandparent Intervention
Note that this reversal does not mean the grandmother will necessarily be awarded grandparent family time. It’s a procedural victory, not a substantive one, which means she has her “foot in the door” to seek grandparent visitation. But she still has hurdles to overcome:
- Satisfying the requirements for permissive grandparent intervention. This seems like a relatively easy hurdle, and is one which grandparents seeking visitation meet in virtually every case, as long as they satisfy the statutory requirements.
- But once she is allowed to intervene, the real battle starts, as the grandmother would have to prove by “clear and convincing evidence” that the father’s determination as to what grandparent family time she should have was not in the child’s best interests, and that her proposed schedule is.
Moreover, since C.R.S. 14-10-124.4(4) requires an evidentiary hearing upon request of a party, once the grandmother is permitted to intervene, the judge must allow them their day in court, and cannot summarily deny grandparent family time without a hearing. But if after a hearing the judge decides that the father’s determination as to their visitation was in the child’s best interests, then the grandparents will have won the battle but lost the war.
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The trial court had denied the maternal grandmother’s motion to intervene and to seek visitation, and she appealed.