On May 23, 2023, Governor Polis signed House Bill 23-1206, Concerning Family Time for Grandparents, which is the first update to grandparents rights in Colorado in almost a decade. The bill takes effect on August 7, 2023 (i.e. on the 91st day after the May 8 adjournment of the Colorado General Assembly).
Grandparents Rights in Colorado
A bit of background – Colorado has a grandparent rights statute which allows grandparents and great-grandparents to ask the court for visitation with their grandchild (which will include “great-grandchild” for the purposes of this post).
There are significant hurdles to grandparents rights. The grandparent must first establish “standing” to even be allowed to petition the court for visitation, and that requires that the grandparent’s child, who is the parent of the grandchild at issue, has died, or that there has been a prior custody case involving the grandchild.
And that only gets the grandparents’ feet in the door to ask for grandparent rights – after that, there are a series of presumptions in favor of the parental determination re: grandparent visitation that the court is required to apply, and the grandparent must prove by “clear & convincing evidence” that the parent’s determination is wrong, and the grandparent’s own requested visitation schedule is in the grandchild’s best interests. For more details on grandparent rights in Colorado, see our Grandparents Visitation Rights article in the Colorado Family Law Guide.
Grandparent Visitation Now Under Domestic Relations Title
The first change which jumps out (to lawyers, at least, not to the general public) is that the grandparents rights statutes have a new home. Long part of the Children’s Code in Title 19, this Act moves grandparent visitation to Title 14, Article 10, where most of family law resides, including child custody, dissolution of marriage, and more.
While this may not seem a sea change, combining grandparents rights in the same title as the rest of domestic relations makes it easier to harmonize grandparent visitation with other child custody changes, as a change to part of that Article will are more likely to affect all sections of the Article, including grandparent rights.
The two relocated grandparents rights statutes come just after the current “best interests of the child” statute, and are:
- C.R.S. 14-10-124.4. This statute sets out the requirements and procedure for a grandparent rights case, and was formerly known as C.R.S. 19-1-117.
- C.R.S. 14-10-124.5. This statute addresses how to resolve allegations that the custodial parent is not complying with grandparent visitation. It was formerly known as C.R.S. 19-1-117.5.
Legal Presumptions in Favor of Parent, not Grandparent
The prior version of the grandparent rights statute simply provided that the court would award the grandparents visitation rights if it was in the “best interests of the child.“
However, in 2006 the Colorado Supreme Court issued a ruling in the C.A. case which tightened up the standards to comport with U.S. Supreme Court precedent, and set up the series of presumptions in favor of the parents over the grandparents (those presumptions are referenced briefly above, but discussed in more detail in our Grandparent Rights article).
The statute has now codified the C.A. ruling, and includes this language:
“In determining the best interests of the child for the purpose of grandparent or great-grandparent family time, the court shall presume the parental determination regarding grandparent time is in the best interests of the child. a grandparent or great-grandparent may overcome the presumption upon a showing by clear and convincing evidence that the grandparent family time is in the child’s best interests.”C.R.S. 14-10-124.4(4) (Emphasis added).
This new language is a change in the statute, but not a change in the actual grandparent rights law – the statute is merely catching up to what the courts have already required for the past 17 years.
Appointment of Child’s Legal Representative (CLR) Authorized
This change is new – the grandparent rights statute now explicitly authorizes a court to appoint a Child’s Legal Representative in cases where visitation is contested.
Previously, the statute was silent on whether or not the family law judge could appoint a parenting expert in a grandparent rights case, as can be appointed in other child custody cases. So the result was a mixed bag – some judges would appoint experts, while others would decline, saying there was no statutory authority. And in other cases, if an expert were already appointed for a parenting time dispute between the parents, then sometimes the grandparents could “piggy-back” onto that expert, who would also consider grandparent rights.
No longer – C.R.S. 14-10-124.4(5) now explicitly authorizes a CLR for grandparent visitation matters, who is an attorney appointed to represent the child’s best interests/
But what’s also significant is that the law only authorizes a CLR. It does not mention nor expressly prohibit, the appointment of a Parental Responsibilities Evaluator (PRE), a Child & Family Investigator (CFI), or a Parenting Coordinator. While this omission formerly created ambiguity, now that the Assembly has stepped in to authorize exactly one type of parenting expert, the strong implication is that the others are not authorized – after all, if they were, then the Assembly would have said so when authorizing a Child’s Legal Representative.
Grandparent Visitation is Now Grandparent Family Time
We have long talked about grandparent visitation rights, but the Assembly has changed that term to “Grandparent Family Time”, and uses it interchangeably with the more cumbersome “Grandparent or Great Grandparent Family Time.”
Per C.R.S. 14-10-124.4(2)(c), that term means:
“any form of contact or engagement between grandparents or great-grandparents and their grandchildren or great-grandchildren for the purposes of preserving and strengthening family ties.”
Beyond this, the other statutory changes are technical – they updated other terms and sections to comport with the above, but there are no other changes.
These changes will not affect the landscape for grandparent rights in Colorado, but primarily will require attorneys, parents, and grandparents to get used to new terms and a new location for the statute.
Finally, while grandparents rights are not typically a fast-changing area of the law, this is our second blog post on the topic this month, following a discussion of the recent court of appeals decision on what legal standard to apply when the parents themselves disagree about the grandparents visitation.
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B The Colorado Assembly, in the first significant change to the grandparent visitation statute since _____________,