Grandparent Visitation When Parents Disagree – Who Decides?

In the seminal 2006 C.A. case, the Colorado Supreme Court promulgated the standard for grandparent visitation rights in Colorado, harmonizing the grandparent rights statute with the “special weight” required by the U.S. Supreme Court’s decision in Troxel, which requires “a presumption that fit parents act in the best interests of their children.”

Standard for Grandparent Visitation Rights in Colorado

First, the grandparent (or great-grandparent) has to qualify to even get their foot in the door to ask for grandparent visitation. In Colorado a grandparent has standing to even ask the court for visitation only if: (a) the child’s parents’ marriage has ended in dissolution or legal separation, (b) a non-parent has parental responsibilities over the child, or (c) the child’s parent who is the child/grandchild of the grandparent or great-parent seeking visitation has died. C.R.S. 19-1-117(1).

But establishing standing is only the first challenge – after doing so, the real battle begins, as the grandparent needs to convince the family law judge to award grandparent visitation is in the child’s best interests, and the judicial deck is stacked in favor of the parents, not the grandparents. The Colorado Supreme Court set forth a series of “hurdles “presumptions” in favor of the parents’ position on grandparent visitation which the grandparents would have to overcome in order to receive any visitation:

• A presumption that the parental determination as to grandparent visitation is in the children’s best interests,
• The grandparents have to prove, by clear & convincing evidence, that the parental determination is not in the children’s best interests, and
• The grandparents have to prove, again by clear & convincing evidence, that the visitation schedule they propose is in the children’s best interests.

C.A., at 328.

For a more detailed discussion of the C.A. case, and about grandparent visitation in Colorado, see our Grandparent Rights & Visitation article in the Colorado Family Law Guide.

One Parent Supports, Other Opposes Grandparent Visitation

So what happens when one parent supports the grandparents’ request for visitation, and the other parent opposes it? When the parents’ wishes conflict, they cannot both be given the special weight required by Troxel, nor the presumption required by C.A. The Colorado Court of Appeals framed the issue in a recent case this way:

“We address a novel issue in Colorado: What legal standard must a district court apply where one fit parent supports, but the other fit parent opposes, grandparents’ petition for court-ordered visitation with their grandchild under section 19-1-117”

O’Connor, ¶ 1.

This split of opinion happens more frequently than the appellate court might think – often in a divorce one parent will support his/her parents seeking grandparent visitation while the other opposes it. But contested cases based upon that difference of opinion are rare – assuming both parents have sufficient parenting time, it’s usually not a legal issue addressed by the courts, as the grandparents will often just see the children during their son/daughter’s own parenting time (a fact the O’Connor court itself noted).

But that won’t work when one parent has minimal time, as happened in O’Connor. There, the mother who supported her parents’ grandparent visitation request had only supervised time (but as the decision points out, no court had ever found her unfit). Meanwhile, the father, who was the children’s primary parent with sole decision-making, opposed grandparent visitation.

The Court of Appeals held that since the mother and maternal grandparents agreed, “only the opposing parent’s Troxel presumption is implicated. Thus, the grandparents must overcome the Troxel presumption of the opposing parent.” O’Connor, ¶ 4.

Trial Court – Both Parents Get Presumptions, Despite Opposing Views

The father did not dispute that the children should remain in contact with their maternal grandparents, but opposed court-ordered visitation, and was particularly concerned that the mother (whose parenting time was restricted) would insert herself into any visits ordered. The trial court found that the father was a fit parent who consistently put the children’s interests first, and had done a “commendable job” of nurturing a positive relationship between the children and their grandparents.

The trial court, faced with divergent opinions from the parents, afforded both parents the presumption that their opinion was in the children’s best interests. And then the judge found that the grandparents had failed to meet their burden to rebut the presumption in favor of the father by clear and convincing evidence, so denied the grandparents’ request for visitation.

Appeal – Battle is Between Grandparents & Father

The grandparents appealed, asking that Colorado adopt the Arizona position that when both parents disagreed, like offsetting penalties in football their presumptions canceled each other out, leaving no presumptions to overcome, so the grandparents need not prove best interests of the children by clear & convincing evidence.

In essence, the grandparents argued that the trial court had disregarded any presumptions in favor of the mother’s position, and only gave the father’s determination any presumptive weight. This was okay to the appellate court, since the only disagreement was between the grandparents and the father: “Our approach recognizes that this case is essentially a dispute between grandparents and father”. O’Connor, ¶ 35.

The fact that one parent agreed with the grandparents did not obviate the grandparents’ burden of overcoming the presumptions in favor of the parent opposing grandparent visitation:

“Grandparents did not need to rebut mother’s Troxel presumption because she agreed with grandparents’ request for visitation. Section 19-1-117 does not permit grandparents to assert mother’s Troxel presumption to circumvent their heavy burden under C.A. to overcome father’s opposition to their visitation request. Grandparents cannot transform this case into ‘a contest between equals’ by pointing to mother’s support for their petition.”

O’Connor, ¶ 36.

Finally, to drive home its point, the court noted: “Here, father, as the parent opposing the visitation request, is the only parent whose best interests decision is subject to judicial review.” O’Connor, ¶ 38.

The Takeaway on Grandparent Visitation?

Most of the time a fit parent will have significant time with the children (if both parents live in the same area), or at least major blocks of vacation time (if they live in different areas). So commonly, if one parent supports grandparent visitation, no court battle is necessary as the grandparents would just see the kids during their son/daughter’s parenting time with their grandchild.

And in those few cases where one parent’s time is restricted, typically that parent’s fitness is in question, and an unfit parent is not entitled to any presumption in favor of his/her position.

This case is unusual not because the parents disagreed about grandparent visitation, but because the parent who supported visitation had only supervised time, so the grandparents had no meaningful opportunity to see the kids except during the other parent’s time. So in reality, the ruling that effectively only the parent opposed to visitation receives the presumptions required by law is based upon a very specific set of facts unlikely to arise much.

FAQ – Grandparent Visitation in Colorado

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