The Constitutionality of Colorado's Grandparent Visitation and Third-party Standing Statutes
Publication year | 2003 |
Pages | 51 |
Citation | Vol. 32 No. 2 Pg. 51 |
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]
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
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 &
Mueller, P.C. - (303) 830-7000, gaultman@bwsm.com; Marie
Avery Moses, Lone Tree, an associate at Gutterman, Griffiths
& Powell, P.C. - (303) 858-8090, marmoses@msn.com
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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