You often hear of grandparents taking over custodial rights of their grandchildren, leading people to believe that grandparents can step in at any time to claim custodial rights over their grandchildren. However, the hard truth is that it is not that simple. I have had grandparents come into our office asking how they might be able to obtain custody over their grandchildren. Unfortunately a lot of the time I send them away with less than great news.
The law is incredibly specific about when a grandparent can be granted custody. There are two statutes in Colorado that specify two circumstances in which grandparents can achieve custody. Both routes to grandparent custody involve the Best Interest Standard, but are for slightly different circumstances.
C.R.S. 14-10-123: In The Shoes
To even qualify for the first option, the grandparents must have essentially stepped into the shoes of the parents. In reality, what this requires is that a grandparent have physical care of the child for at least 182 days. In determining whether or not a grandparent has had physical care, the Court will consider the frequency, duration, and type of care a grandparent has provided. The good news is that it does not require exclusive care.
After proving physical care, the grandparent must then show whether or not the parent is actually fit. Fitness is a tricky subject, because it is incredibly serious. The Court defaults to the “Children’s Code,” more specifically the Dependency and Neglect Section. Speaking in broad terms, to find a parent “unfit,” there must be some neglect of the children. Child neglect is taken seriously by the state, so it is always a possibility that the child services may get involved. This is the hardest hurdle for a grandparent to overcome through this route.
Lastly, the Best Interest Standard is applied. The grandparent must prove through clear and convincing evidence that the parent does not have the best interest in mind for the child. The legal difficulty with that is that there is a presumption that the parent always has the best interest of the child in mind. If the grandparent is successful proving that, they must then show they have the best interest for the child in mind.
C.R.S. §19-10-117: Best Interest
This option piggybacks off of the other option. It has one less step, but unfortunately that only makes it more difficult. A grandparent can petition the court for custody if there is an open dissolution of marriage with children matter, an allocation of parental rights matter, or if a parent has died.
The second step is the third step of the other option: The Best Interest. Like I mentioned, there is a presumption that a parent maintaining custody will always be in the child’s best interest. It is hard to explain why this is such a difficult hurdle to overcome because the best interest standard is written broadly.
This blog isn’t meant to discourage grandparents from seeking visitation or custodial rights over grandchildren. It’s meant to create realistic expectations. Give us a call at Springs Law Group to discuss the possibility of achieving grandparent custody!