Friday, November 25, 2005

Case Law Development: Constitutionality of Grandparent Visitation Statutes

It has been five years since the United States Supreme Court decided Troxel v. Granville, 530 U.S. 57 (2000) and states continue to refine their grandparent visitation statutes in light of that decision.  As we noted in our October 11th post, Ohio recently upheld the constitutionality of its statute. 

Now, the Colorado Supreme Court has granted cert to review the constitutionality of its grandparent visitation statute in a case in which the grandchild was adopted by the aunt and uncle after both parents had died.  The magistrate in that proceeding granted grandparent's visitation.  On the first appeal of the case, the court of appeals held the statute constitutional on its face and determined that the so-called "adoption exclusion” (which exempts grandparent visitation after a child has been placed for adoption) applies only when a child becomes available for adoption because the natural parents' rights have been legally terminated.   Nonetheless, the court of appeals vacated the visitation order, remanding for consideration of whether the magistrate had given "special significance" to the parents' wishes, as constitutionally required. 

The magistrate held a second hearing and reinstated the visitation order.   On a second appeal, the appellate court once again reversed, holding that an adoptive parent is entitled to the same presumptions as biological parents when it comes to gp visitation.  The Colorado Court of Appeals agreed with those jurisdictions that find that giving “special signficance" to parent’s decisions means that a court may not override parental decisions only for compelling reasons (parental unfitness or substantial harm to the children from denying visitation).   

In re Petition of R.A., 121 P.3d 295, 2005 Colo. App. LEXIS 525  (April 7, 2005)
cert. granted In re Adoption of C.A. v. R.A., 2005 Colo. LEXIS 889 (Colo. Oct. 3, 2005)

Court of Appeals Opinion on the web at http://www.courts.state.co.us/coa/opinion/2005/2005q2/04CA0503.pdf (last visited November 25, 2005 bgf)

http://lawprofessors.typepad.com/family_law/2005/11/case_law_develo_31.html

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