No. 05SC526. In the Matter of the Petition for Adoption of C.A.

Grandparent Visitation—CRS § 19-1-117—Parental Rights—Care, Custody, and Control of Child—"Special Weight"—"Special Factors"—Best Interests of the Child—Presumption in Favor of Parent—Grandparent Rebuttal of Presumption—Evidentiary Burden.

R.A., Jr. and T.A. adopted their nephew, C.A., after C.A.’s mother died. C.A.’s father had died earlier in the child’s life. Petitioners N.F. and A.F., C.A.’s paternal grandparents, conditionally objected to the adoption and sought visitation rights under Colorado’s grandparent visitation statute as a condition of the adoption. The magistrate granted the adoption, but ordered visitation with the grandparents, over the objections of C.A.’s adoptive parents. On appeal, the Court of Appeals concluded that due process of law requires that a grandparent, to obtain a visitation order, prove "that a fit parent’s exercise of parental responsibilities poses actual or threatened emotional harm to the child," and that such harm must be "substantial."

To accommodate both the General Assembly’s "best interests of the child" intent and the "special weight" and "special factors" requirements of Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion), the Colorado Supreme Court holds that the appropriate standard for issuance of an order for grandparent visitation under CRS § 19-1-117 requires that: (1) a presumption in favor of the parental visitation determination; (2) to rebut this presumption, a showing by grandparents through clear and convincing evidence that the parental visitation decision is not in the child’s best interests; and (3) placement of the ultimate burden on grandparents to establish by clear and convincing evidence that the visitation schedule they seek is in the best interests of the child. The court must apply this standard in grandparent visitation cases and, if it orders grandparent visitation, it must make findings of fact and conclusions of law identifying those "special factors" on which it relies. Accordingly, the judgment is reversed and the case is remanded to the district court for further proceedings consistent with this decision.