Menu icon Access the Business Officer Magazine menu by clicking or touching here.
Colorado Lawyer Magazine logo, click or touch this logo to return to the homepage Click or touch the Colorado Lawyer Magazine logo to return to the homepage. Search

In re Marriage of O’Connor.

2023 COA 35. No. 21CA1695. Grandparental Visitation Rights—Troxel Presumption—Attorney Fees.

April 20, 2023

Father and mother, the parents of two children, obtained a dissolution of marriage. Neither party was found to be an unfit parent. Their dissolution decree incorporated a stipulated parenting plan for their children providing that father is the children’s sole residential parent and decision-maker and limiting mother’s parenting time to four one-hour supervised visits each week. Following the dissolution of marriage, mother’s parents (grandparents) filed a petition in the dissolution of marriage case for visitation rights with the children under CRS § 19-1-117, which mother supported and father opposed. Following a hearing, the court (1) accorded a presumption in favor of mother’s position that court-ordered grandparent visitation was in the children’s best interests; (2) accorded a presumption in favor of father’s position that court-ordered grandparent visitation was not in the children’s best interests; (3) concluded that grandparents failed to rebut, by clear and convincing evidence, the presumption accorded to father; and (4) determined that father’s decision to allow grandparents visitation at his discretion was in the children’s best interests. The court denied grandparents’ petition but encouraged father to continue involving grandparents in the children’s lives.

On appeal, grandparents argued that their visitation petition should have been granted based on Arizona caselaw holding that when two fit parents disagree on grandparent visitation, their constitutional presumptions cancel each other out and the best interests of the child standard controls the analysis. Troxel v. Granville, 530 U.S. 57 (2000), requires courts to afford presumptive or special weight to a fit parent’s decision regarding their child’s visitation with third parties. Accordingly, a district court may not disregard the parents’ fundamental right to make decisions regarding their children under the theory that the parents’ presumptions cancel each other out. But while mother has a Troxel presumption as a fit parent, that presumption does not apply to the dispute between grandparents and father. Therefore, grandparents’ visitation request implicated only father’s Troxel presumption, and In re Adoption of C.A., 137 P.3d 318 (Colo. 2006), applies, under which grandparents’ request for visitation fails unless they overcome, by clear and convincing evidence, father’s presumption that his determination against visitation is in the children’s best interests. Here, the district court afforded father his Troxel presumption and allowed mother to present evidence and arguments, and grandparents failed to meet their burden of proof to overcome father’s presumption. Therefore, the district court did not err by denying grandparents’ request for court-ordered visitation.

The court of appeals also denied father’s attorney fees request because the grandparents’ contentions were not so lacking in merit that they were substantially frivolous, groundless, or vexatious.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

Back to the From the Courts Page