April 19, 2018

Colorado Court of Appeals: Grandparents Have Burden of Proof to Overturn Visitation Order

The Colorado Court of Appeals issued its opinion in In re the Parental Responsibilities of A.M. and Concerning Goebel on September 16, 2010.

Parental Responsibilities—Grandparent Visitation—Changed Circumstances—Burden of Proof—Clear and Convincing Evidence.

In this parental responsibilities and support action concerning A.M., respondents, the child’s paternal biological grandparents, appealed the trial court’s order terminating grandparent visitation and in favor of petitioners, A.M.’s mother and adoptive father. The order was affirmed.

In 2005, the trial court awarded mother sole residential and decision-making responsibility over A.M. and declined to award parenting time to A.M.’s biological father, who was incarcerated. In September 2008, the paternal grandparents petitioned for and the court awarded visitation with A.M. one weekend day per month. In February 2009, father’s parental rights were terminated, mother’s husband adopted A.M., and the paternal grandparents’ visitation was terminated.

The grandparents argued that the trial court erred by applying an incorrect legal standard to mother’s and adoptive father’s termination motion and improperly placed the burden of proof on them. The Court of Appeals disagreed. Mother provided evidence of a material change in circumstance: the parents’ marriage, the adoption of A.M., and the reports to the therapist. Because mother established the presumption that her visitation decision was in A.M.’s best interests, the burden of proof shifted to the grandparents. The trial court then correctly required the grandparents to present clear and convincing evidence. The grandparents failed to establish either the mother’s unfitness or the presence of exceptional circumstances showing that termination of the grandparents’ visitation would adversely impact the child pursuant to that burden. The order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on September 16, 2010, can be found here.

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