The Surviving Parent’s Decision Gets the First Presumption
This is the part grandparents are least prepared for. A fit parent is presumed to act in the child’s best interests, and that presumption is constitutional rather than a matter of local practice.3 The statute carries it directly into grandparent family time cases.
A death does not soften it. The surviving parent is still a fit parent making a decision about their own child, and losing the other parent does not shift the starting point in your favor.
That is hard to hear while grieving, and it is better heard now than at a hearing. It also explains why these cases turn on evidence rather than on the strength of the family bond you are describing.
What You Actually Have to Prove
The statute states the test directly. The court presumes the parental determination about grandparent family time is in the child’s best interests. A grandparent overcomes that presumption only by clear and convincing evidence that the family time is in the child’s best interests.
That is a higher standard than the preponderance used in most family law questions, and the burden stays with you throughout.
The Colorado Supreme Court set out the framework behind that language as three steps. The middle step, which the codified text does not restate, is rebutting the presumption by clear and convincing evidence that the parental determination is not in the child’s best interests.4 A court granting family time must make findings identifying the special factors it relied on.
Where two people hold parental authority and disagree, one parent’s support does not cancel the other’s opposition. The Court of Appeals has held that the grandparent must overcome the opposing parent’s presumption.5 That case was decided under the repealed section, though the standard it applied is the one now codified.
Lost contact with a grandchild after your child died?
The death gives you standing to ask, and the two-year limit means timing matters. Schedule a free consultation with Johnson Law Group and we will tell you whether you qualify and what your evidence would need to show.
Colorado Does Not Require You to Show Harm
A lot of grandparent rights material says you must prove the child will be harmed without contact. That is the rule in a number of states, and it is not the rule here.
Colorado runs on the parental presumption and the clear and convincing standard described above. There is no separate harm or detriment threshold in the statute or in the standard the Colorado Supreme Court set.
Colorado appellate courts have also held the burden cannot be framed so that the parent must prove the family time would adversely affect the child. The question runs the other way, and it runs on best interests rather than damage.
The distinction matters in both directions. It means a qualifying grandparent is not facing an impossible test, and it means the real work is evidence about the child rather than a claim of damage.
What Evidence Actually Helps
The court weighs the same best interests factors that govern other parenting decisions.6 That is where a real relationship shows up, and where a general sense of family loyalty does not.
Specific history carries weight. Regular overnights, school pickups, holidays hosted, medical appointments attended, and years of routine caregiving are concrete and provable in a way that affection alone is not.
Records help more than recollection. Photographs with dates, messages, school and activity records listing you as a contact, and third parties who can describe the relationship all give a court something to work with.
The child’s adjustment matters too. Where a grandparent was part of the child’s daily world before the death, continuity of that world is the argument, rather than the grandparent’s own loss.
If You Are Not a Grandparent
This statute covers grandparents and great-grandparents only. A non-relative caregiver, a stepparent, or another relative outside that definition has a different route, which is a petition for allocation of parental responsibilities with its own standing requirements.7 A separate section also addresses requests for parental responsibility by grandparents specifically.
Those routes ask for decision-making authority and a parenting schedule rather than contact. They are a bigger request, and they are judged differently.
If you are not sure which category you fall into, that is the first question to settle. Filing the wrong request costs time you may not have.
When Both Parents Have Died
If both parents have died, there are two different questions, and which one you are asking decides everything else.
A grandparent who wants to raise the child is asking about guardianship. A grandparent who wants contact with a grandchild being raised by someone else can still petition for family time, because the death of your own child remains a qualifying circumstance.
Nothing in the statute removes that basis because the other parent also died. That is worth knowing if your grandchild is now being raised by the other side of the family.
For the guardianship route, a court may appoint a guardian for a minor where no parent with parental rights survives, or where those rights have been suspended or terminated.8 The appointment has to serve the child’s best interests, and a parent can also nominate a guardian in a will or another signed writing.
A guardian can make decisions about school, medical care, and where the child lives, which is authority a family time order does not carry. Colorado guardianship sets out who can petition and what a court weighs before appointing one.
A grandparent who wants to raise a grandchild is usually asking about guardianship, even when they use the word custody. Naming the right request early saves a filing.
