Grandmother in garden with young girl sitting in wheelbarrow.

Grandparent Rights & Safety of Child

Grandparent rights matter, especially when a child’s safety is at stake. A Grandmother retained Graham.Law’s Tahli Delgado out of concern for her grandson’s safety with his mother. Unfortunately, the child’s mother had a history of alcohol abuse, which routinely placed the child in dangerous situations and often neglected circumstances. The grandparents had temporarily cared for the child during the mother’s repeated absences from the child’s life. However, Grandmother realized that a parent’s constitutional rights to care for a child in the way that parent chooses is a preeminent right, as the body of law in grandparent visitation cases demonstrates. But when a child’s well-being is at stake, a parent’s rights necessarily come second.

Grandparent rights prevailed – the result is a happy client and grandmother, and a safe child.

Motion To Restrict Parenting Time

Grandparent rights wins over alcoholic parentGrandparent rights wins over alcoholic parentColorado law on the restriction of parenting time provides:

“A motion to restrict parenting time or parental contact with a parent which alleges that the child is in imminent physical or emotional danger due to the parenting time or contact by the parent shall be heard and ruled upon by the court not later than fourteen days after the day of the filing of the motion.”

C.R.S. 14-10-129(4) (Emphasis added).

The trial court must set a hearing to determine whether a parent’s actions place the child in “imminent physical or emotional danger,” meaning that there is an impending chance of injury to the child, which is likely to occur, unless the Court intervenes.

Elements of a Motion to Restrict Parenting

Sorry about the technical terms, but since a motion to restrict is like no other, it’s important to understand exactly what the court will be considering. The Colorado Supreme Court has equated “imminent danger” with “imminent risk.” Mendoza-Balderama.1People v MendozaBalderama, 981 P.2d 150 (Colo. 1999).

The Court of Appeals defined those terms in Moczygemba2Moczygemba v. Colorado Dept. of Health Care Policy and Financing, 51 P.3d 1083 (Colo.App. 2002). as follows:

  • Risk is “the chance of injury, damage, or loss”
  • Imminent means it is “likely to happen without delay; impending; threatening”

The objective in this statutory provision is to balance the need to protect children from “imminent physical or emotional danger” against the constitutional right of a parent to the care, custody, and control of his or her children. Slowinski.3In re: Marriage of Slowinski, 199 P.3d 48 (Colo.App. 2008).

As we recently wrote about, granting a hearing on a motion to restrict is now mandatory: as long as the motion contains specific details – the trial judge can no longer “weed out” weaker cases. The courts have in essence reaffirmed that protecting children trumps parental authority. 

Generally, a motion to restrict is one parent alleging that the other parent is unsafe for the children, thus requesting the Court to adjust parenting time. Sensibly, a person who is not designated a parent wouldn’t be entitled to parenting time… or would they?

Psychological Parent & Grandparents Rights

In our case, we faced not only the already-difficult hurdle of restricting a parent’s time, but we represented non-parents, so it raised somewhat the issue of grandparent rights and standing. Tahli first convinced the court that the grandmother, as an Intervenor in the case, had standing to request a restriction in Mother’s parenting time.  Because Grandma had cared for the child at various times during the child’s life, and had been a stable and continued presence in the child’s life, she was deemed a psychological parent. This then allows the court, in the right circumstances, to find that it would be a detriment or emotional harm to the child to remove this person from the child’s life. 

Due to the ever changing landscape of what defines a “family,” grandparent rights is becoming a more hotly-litigated issue as there are often other parental figures to consider in a child’s life, aside from simply “mother” or “father.” Notably, there are blended families with step-parents fulfilling a role of guidance and safety. As well, there are LGBTQ couples providing for two mothers or two fathers. Additionally, and relevant in this case, there are grandparents who have assumed the role of parents, whether by accident or by intention. And this assumption of a role gives them grandparent rights.

Tahli effectively argued Grandmother’s case to demonstrate that not only was Grandmother’s presence and care of child sufficient to establish her as a psychological parent, but also that Grandmother’s care of the child trumped that of Mother, who was shown to be an unfit parent. Effectively, Mother’s parenting time (and decision-making responsibilities) was subrogated to Grandmother for the time being. The court agreed.

Decision-Making Responsibilities vs. Parenting Time

Typically decision-making responsibilities and parenting time do not go hand-in-hand in Colorado. That means that even if a parent is an absent parent or not frequently present with the child for parenting time, that parent often still receives the right to be included in major decision-making responsibilities. A parent can be considered “away” if he/she lives in another state, is in the military on deployment, is incarcerated, or simply exercises little to no parenting time. Major decision-making responsibilities include those concerning health, medical, education, school, religion, and sometimes extra-curricular activities. 

When a parent is deemed unfit and his/her parenting time is restricted, as in this Mother’s case, it’s important to also assess whether it’s appropriate to restrict decision-making responsibilities.  Notably, the person caring for the child on a specific day may dictate daily care for the child, including hygiene, food, and play. However, major decision-making responsibilities remain with the legal parent or guardian. Even in cases of foster care, the foster parent must often first consult with the legal parent, placement agency, or state before making major decisions. 

In this case, the grant of grandparent rights went further than normal, as Tahli persuaded the Court to provide Grandmother decision-making responsibilities, in addition to parenting time. This is a huge feat, to say the least. Tahli focused on the fact that Mother was not fit, so lacked the capacity to make good decisions for the child and in the child’s best interests. Therefore, Grandmother was granted decision-making authority while the child remained in her care.

grandparent rightsgrandparent rights

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