Non-Traditional Family Units – Grandparent Rights

A. Grandparent Rights

In the last thirty years, extended family, and particularly grandparents, have increasingly shouldered child rearing responsibilities. Some states give standing to non-parents to seek custody of children in their care. For example, in Colorado parental responsibilities (custody) may be sought “by a person other than a parent, by filing a petition seeking the allocation of parental responsibilities for the child in the county where the child is permanently resident or where the child is found, but only if the child is not in the physical care of one of the child’s parents; or by a person other than a parent who has had the physical care of a child for a period of one hundred eighty-two days or more, if such action is commenced within one hundred eighty-two days after the termination of such physical care.” Once standing has been established, grandparents may pursue custody or parenting time in the same manner as traditional parents.

Many states have also passed grandparent visitation statutes. These effectiveness of the rights granted by the statutes has been significantly limited by the plurality ruling of the U. S. Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed2d 49 (2000). In striking down the Grandparent Rights statute of Washington State, the court found that parents have a fundamental constitutional right to the “care, custody and control of their children.” The Washington state statute was very broad in its applicability, and gave little or no deference to the decisions of parents regarding non-parent visitation. The court found that states must give “special weight” to parental decisions regarding visitation. The Washington statute infringed too deeply on the fundamental rights of the parents.

In response some states have enacted statutory changes to ensure the constitutionality of their grandparent visitation statute. Other states have, through judicial interpretation, reconciled existing statutes with the requirements of Troxel. For example, see In re the Adoption of C.A., 137 P3d 318 (Colo. 2006) which reconciles the best interests of the child standard set forth in §19-1-117, C.R.S. with the “special weight” given parental decisions under Troxel.

By: Rich M. Arnold, Esq. Arnold & Arnold, LLP