The Constitutionality of Colorado's Grandparent Visitation and Third-party Standing Statutes

Publication year2003
CitationVol. 32 No. 2 Pg. 51
32 Colo.Law. 51
Colorado Lawyer

2003, February, Pg. 51. The Constitutionality of Colorado's Grandparent Visitation and Third-Party Standing Statutes


Vol. 32, No. 2, Pg. 51

The Colorado Lawyer
February 2003
Vol. 32, No. 2 [Page 51]

Specialty Law Columns
Family Law Newsletter
The Constitutionality of Colorado's Grandparent Visitation and Third-Party Standing Statutes
by Marie Avery Moses

This column is sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles are intended to focus on practice tips and discussions of current issues within the realm of family law. New column authors are welcomed

Column Editors

Gretchen Aultman, Denver, of Burns, Wall, Smith &amp Mueller, P.C. - (303) 830-7000,; Marie Avery Moses, Lone Tree, an associate at Gutterman, Griffiths & Powell, P.C. - (303) 858-8090,

About The Author:

This month's article was written by Marie Avery Moses, Lone Tree, an associate at Gutterman, Griffiths & Powell, P.C., and an editor of this column - (303) 858-8090.

This article describes Colorado's grandparent and third-party visitation statutes, provides a history of Colorado case law interpreting those statutes, and summarizes three recent decisions of the Colorado Court of Appeals applying principles announced in the U.S. Supreme Court Troxel decision.

The U.S. Supreme Court recognized in its 2000 landmark decision, Troxel v. Granville,1 that the composition of the American family varies greatly from household to household. In many homes, grandparents and other relatives undertake childrearing duties.2 In addition to relatives, children often form parent-child relationships with unrelated persons, such as stepparents and foster parents.3

All fifty states have statutes conferring the right on grandparents to seek visitation with their grandchildren in various situations, such as the death or divorce of a parent.4 Many states, through statutes or common law, have recognized the rights of other caregivers, such as stepparents or "psychological parents," to seek custody or visitation with children.5

This article discusses the U.S. Supreme Court decision in Troxel and its impact on grandparent and third-party visitation statutes across the country. In particular, this article addresses Colorado's statutory scheme governing grandparent and third-party visitation rights and the case law interpreting such statutes. Finally, this article summarizes three recent decisions of the Colorado Court of Appeals, which interpret Colorado's grandparent visitation statute by applying the principles articulated in Troxel.6

Supreme Court Ruling in Troxel

Due in part to the sweeping scope of some grandparent and third-party visitation statutes, questions arose in the appellate courts regarding the limits necessary to protect the rights of parents facing an onslaught of third-party custody and visitation requests. For example, in addressing grandparent visitation issues, a California appeals court stated:

Deciding whether grandparents should have visitation with their grandchildren over the objection of a parent is the type of case that tugs at the hearts of most trial judges, evoking memories of personal experiences with their own families - both good and bad. As a result, the temptation seems to be (more than in other types of cases) to allow the heart to rule over the letter of the law.7

Perhaps this observation explains the atypical Troxel decision, announced on June 5, 2000. Troxel contained a plurality opinion, two separate concurring opinions, and three separate dissenting opinions.8 Despite the lack of a uniform consensus among the justices, the U.S. Supreme Court's decision in Troxel provides some guidance to courts, attorneys, and litigants.

Case Summary

Tommie Granville and Brad Troxel were the unmarried parents of two daughters. When they separated, Brad Troxel lived with his parents, Jenifer and Gary Troxel. Brad regularly exercised parenting time with his daughters at the home of his parents.

After Brad committed suicide, the mother permitted the children to regularly visit with the Troxel grandparents. However, Granville soon limited the children's visits with the Troxels to one short visit per month.9

The Troxels petitioned the Washington Superior Court for visitation rights under a state statute that provided:

Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interests of the child, whether or not there has been a change of circumstances.10

The Washington trial court granted the Troxels' visitation request for time in excess of that approved by Granville. The Washington Court of Appeals reversed the trial court's visitation order, holding that the Troxels did not have standing because there was no custody action pending.11 The Supreme Court of Washington consolidated the Troxels' case with two other visitation cases and held that the Washington visitation statute violated the U.S. Constitution because: (1) a court can interfere with the rights of parents to make decisions for their children only to prevent harm to the child; and (2) the language permitting "any person" to petition "at any time" was too broad.12

Supreme Court Opinion

The U.S. Supreme Court plurality opinion rejected the analysis of the Washington Supreme Court.13 However, it concluded that the Washington visitation statute was unconstitutional as applied to Granville. The Court enunciated the following principles:

1. The Fourteenth Amendment grants parents a fundamental liberty interest in the care, custody, and control of their children.

2. There is a presumption that a fit parent makes decisions in the best interests of the child.

3. If a parent adequately cares for his or her children (in other words, is a fit parent), normally there will be no reason for the state to inject itself into the parent's decisions about his or her children.

Given these principles, four factors led the plurality to conclude the Washington statute was unconstitutional as applied to Granville: (1) there was no allegation that the mother was an unfit parent; (2) the trial court did not give any special weight to the mother's determination of her daughters' best interests; (3) the trial court appeared to place the burden on the mother to prove that grandparent visitation was not in the best interests of the children; and (4) the mother did not cut off visitation completely or unreasonably.

Concurring opinions addressed issues of constitutionality of the Washington visitation statute based on its breadth and its infringement on parental rights.14 In dissenting opinions, the justices expressed the differing opinions that: (1) it is constitutionally permissible to protect a child's close relationships; (2) parental rights are not enumerated in the U.S. Constitution; and (3) custody disputes are so disruptive to parent-child relationships that a parent's constitutional rights often are implicated.15

National Impact of Troxel

Since the announcement of Troxel, the appellate courts in more than thirty states have addressed the constitutional implications of grandparent and third-party visitation and standing statutes. A majority of courts have upheld the facial constitutionality of the visitation statutes by: (1) distinguishing the statutes as...

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