When Can Grandparents Be Awarded Custody of Their Grandchild?

When a couple’s marriage goes through dissolution, a great deal of energy is spent on the merits of parental visitation rights and custody. The grandparents, though, are often not thought of, as they are not automatically granted visitation rights nor do they gain their grandchildren’s custody.

In certain circumstances, it is conceivable that grandparents may be given custody of a grandchild or grandchildren. However, there must be a definite reason for custody to be granted to the grandparents if either parent of the child is still alive and is still involved or is capable of parenting his or her child.

Under Colorado’s Uniform Dissolution of Marriage Act or UMDA, a grandparent can petition the court to gain parental rights of a child in the event the child is not under the physical care of one of his or her parents, or if a one of the spouses has left his or her child in physical care of the child’s grandparents for at least 182 consecutive days.

If the grandparents would like to file a petition for child custody after this arrangement has extinguished – such as if one or both parents have taken the child back or the grandchild has left the grandparent’s home – then the grandparents must file within 182 days of the child no longer living with them. In most instances, the particular motion is called a Motion for Allocation of Parental Responsibilities.

In deciding whether to grant a grandparent parental responsibility for a grandchild, the court will consider the best interests of the grandchild, as well as other things such as the relationship between the grandchild and his or her grandparent and the health of the grandparent.

From a pragmatic perspective, courts may award custody to a grandparent if the child is physically, emotionally, or psychologically abused or neglected at home. Another reason is when police or other authorities have previously taken the children from the parent’s home. Other considerations are when the parents of the grandchildren are underage, incarcerated, or guilty of breaking the law.

Since Colorado laws on grandparent rights and custody are not straightforward, a grandparent may profit tremendously by speaking to a capable, competent, and experienced attorney. While a grandparent’s rights on visitation and custody are not automatically granted, a grandparent may be vested these rights if a family law court finds that such a legal agreement is indeed in the best interests of the children.