Long established is the premise that a dispute between a parent and non parent is not a contest of equals. Let’s say you are a grandparent or a psychological parent (parent that has helped raise the child but not the biological parent) and you want to continue to see the child and possibly even be allocated parental responsibilities for the child(ren) after a bitter breakup. You want to know what your options are in continuing your relationship with the child(ren).
The Colorado Court of Appeals recently clarified the standard to apply in these situations. Prior to this Court of Appeals Decision, there was confusion as to whether the non parent had to prove that the parent was unfit or that the parent would likely make a decision that is not in the child’s best interests. The current standard requires that special factors must justify the Court’s interference with the parent’s fundamental right to parent the child(ren) and special weight must be given to a parent’s determination. The Court must make factual findings and legal conclusions identifying the “special factors” on which it relies. See In re Parental Responsibilities of M.W., 2012 COA 162. No.12CA0771, (citing In re Parental Responsibilities of B.J., 242 P.3d 1128,1134(Colo. 2010).
The three part test reaffirmed in In re Parental Responsibilities of M.W., 2012 COA 162. No. 12CA0771, is stated as follows: 1) A presumption exists favoring the parental determination; 2) The non parent must show by clear and convincing evidence that the parental determination is not in the child’s best interests; 3) The non parent must establish by clear and convincing evidence that the non parent’s requested allocation (or in the case of grandparent visitation – requested visitation).
The good news for the non parent is that the burden is not too high to overcome. Once a psychological parent or grandparent is able to establish a close relationship with the child(ren), they will most likely be able to show that an ongoing relationship is in the best interests of the child(ren). This should prevent the parent from being able to withhold the child(ren) from a non parent due to arbitrary and sometimes biased motivations on the part of the parent.