On April 20, 2023, a division of the Colorado Court of Appeals, with Judge Lipinsky writing, published In re Marriage of O’Connor, 2023 COA 35. The case concerns the appropriate standard for considering a grandparent’s request for visitation[1] over one but not both parents’ objection.
In Colorado, grandparents can request visitation in custody and child welfare cases. The question in grandparent cases is how to balance the fundamental constitutional rights of natural and legal parents to make decisions about their own children against the rights of other family members to have relationships with the children, and the children’s right to have relationships with non-parent caregivers. Parents and non-parents do not come to the table with equal constitutional rights; parents’ rights are privileged. And fit parents are presumed to act in their children’s best interests.
In some cases, that balance is straightforward. The parents disagree with grandparents, and the parents’ rights are privileged over the grandparents’ requests. Clear enough. But what about when one parent agrees with the grandparents and the other doesn’t? Does a fit parent’s position in favor of a grandparent elevate that grandparent’s constitutional standing?
According to the O’Connor court, no. The relevant comparison for constitutional analysis is the fit parent who disagrees with the non-parent’s position. Therefore, even when one parent says: “I believe it is in my child’s best interests to have visitation with their grandparents,” the other parent can raise roadblocks. And the grandparent still has to overcome the constitutional rights of the objecting parent.
On one hand, this makes sense. One parent’s position favoring visitation by a non-parent should not elevate that non-parent constitutionally. And the objecting parent should be “constitutionally superior” to any non-parent. There is also a reason to be wary of potential opportunism, here: in a high-conflict custody case where parents are battling over every minute of parenting time, a grant of visitation to a set of grandparents aligned with one parent may be seen as a grant of “additional” time to one parent or the other.
But this analysis also undervalues the constitutional rights of the parent who wishes to encourage a grandparent relationship over the other parent’s objection. Both parents should come to the table with equal constitutional rights, and if one parent wants to exercise her constitutional rights to promote a grandparent relationship through protected visitation, there is at least an argument that that should have some constitutional weight. The O’Connor court’s approach appears to undervalue that. Other states have disagreed with the O’Connor analysis, and I expect this case will not be the last word on this issue.
One last thing to note: regardless of the legal analysis, family law cases are often decided on their facts. In O’Connor, the conflict was between the children’s father and their maternal grandparents. Mother exhibited debilitating signs of mental illness and had limited, supervised contact with the children. And father raised concerns about mother’s unsupervised contact with the children during any visitation with maternal grandparents in addition to concerns with grandparent time based on the children’s specific experiences and development. And Mother’s participation in the hearing was limited.
Ultimately, the trial court – after hearing the facts of the case – granted father the discretion to make decisions about maternal grandparents’ contact with the children. And the Court of Appeals affirmed.
For practitioners litigating these cases, the high-minded constitutional arguments are an important framework because they provide the language for arguing the cases. But fundamentally, trial courts are trying to figure out what works best for children, and appellate courts are appropriately wary of second-guessing those decisions based on a cold record. So one could easily imagine different facts creating a more grandparent-friendly outcome here, even with the same legal analysis.
[1] Legislation is currently pending in the General Assembly that would change the term “visitation,” but this article uses the legal term of art as the law is currently written.
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