Chapter 34 - § 34.1 • GRANDPARENT VISITATION

• Jurisdiction: Colorado

§ 34.1 • GRANDPARENT VISITATION

§ 34.1.1—Statutory Basis and Standing

Grandparents have no rights for visitation unless a "custody or parental responsibilities case" (as defined by statute) exists, or the child's parent is the deceased child of the grandparent. The grandparent visitation statute, C.R.S. § 19-1-117, allows a grandparent or great-grandparent to seek a court order granting reasonable grandparent visitation rights if there is or has been a "child custody case or a case concerning the allocation of parental responsibilities relating to that child."

Child custody and allocation of parental responsibilities (APR) actions are defined to include the following:

• A dissolution of marriage, declaration of invalidity, or legal separation action;
• An action where custody or parental responsibilities have been allocated to a party other than the child's parent or where the child has been placed outside the home, unless the child has been placed for adoption or has, in fact, been legally adopted; and
• A situation where the grandparent's deceased child is the deceased parent of the grandchild.

C.R.S. § 19-1-117(1).

Practice Pointer
For this last situation, note that only the death of the parent is necessary, and that no court case need be pending.

Grandparents or great-grandparents do not have standing under the statute to seek visitation rights where the grandchild's or great-grandchild's parents never married if there has been no APR or other custody case filed concerning the child. In re D.C., 116 P.3d 1251 (Colo. App. 2005). A constitutional challenge on equal protection and due process grounds in 2005 failed. Id.

A parent does not have standing to argue for grandparent or great-grandparent visitation rights if the grandparent or great-grandparent has not filed a request, because only the grandparent or great-grandparent has these statutorily derived rights. In the Interest of D.R.V., 885 P.2d 351, 355 (Colo. App. 1994). Where the child is represented by a guardian ad litem (GAL), only the GAL, not the parent, may assert the rights of the child. Id.

A dependency and neglect proceeding is a custody case for purposes of the grandparent visitation statutes, but only if the facts fit the specific criteria of the statute. People in the Interest of J.W.W., 936 P.2d 599 (Colo. App. 1997). Grandparent/great-grandparent visitation is specifically excluded when a child has been placed for adoption or an adoption has already occurred. C.R.S. § 19-1-117(1)(b). An involuntary termination of parental rights eliminates a grandparent's or great-grandparent's standing to pursue visitation. J.W.W, 936 P.2d at 601. In 2018, the Colorado Court of Appeals addressed this standing issue from the constitutional perspective, holding that a grandparent or great-grandparent has no constitutionally protected liberty interest in the society or custody of the child simply by virtue of their biological relationship. In the Interest of C.N., 2018 COA 165.

Practice Pointer
The mere existence of a dependency and neglect action, by itself, may not be enough to trigger grandparent or great-grandparent standing pursuant to the visitation statute. Sometimes, dependency cases proceed while the custody and placement of the child remains with the parent(s). Unless the custody has been allocated to a person other than the child's

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