What happens when a grandchild of a grandparent is in a situation where a biological parent has passed away? Does that grandparent have rights to custody or visitation? There is a statute in Colorado that deals with grandparent visitation that's different than the grandparents' rights to file for custody rights.
Visitation is where the grandparent is before the court by the filing of a petition that says that the grandparents' child has passed away and that there are grandchildren that that grandparent wants to be able to see or have visitation rights with. A court still must determine the best interest of the statute of the child, and that's per the statute and the law in Colorado, and whether or not it is in the best interest of the children to see that grandparent.
Ultimately that decision will be made by a judge. A lot of times grandparents and the surviving parent, can reach an agreement because the other parent recognizes that having grandparents involved in their children's lives is significant and important to the children. In many other cases, a surviving parent may say to the grandparents, “I don't feel that your involvement with the children is in the children's best interest, that you're disruptive, that you're causing them stress and anxiety.” And the court has to make that decision. Based upon a number of cases that have come out over the years, a parent ultimately has a fundamental liberty interest as to the care, custody, and control of their children.
So when it becomes a contest as to whether or not a parent is acting in a child's best interest, a court has to weigh that presumption in favor of a parent's decisions over that of a grandparent's decision. It's important to talk to an experienced attorney that deals with grandparents' rights when you are thinking about filing one of these kinds of cases to maintain contact with a grandchild or grandchildren after the passing of a parent.