When people talk about custody hearings, it is usually from the perspective of parents seeking to gain or share time with children. However, it’s also important to understand that grandparents can be an important part of children’s lives.
One of the ways this can apply is when the parents are no longer able, willing, or responsible enough to care for their children. The result may be that the children will need to be removed or an alternative carer found. Rather than seeing your grandchildren head into the care system, you may naturally feel that it is better for everyone concerned if they come to stay with you for a time. Can a grandparent file for emergency custody, though? Let’s take a closer look at the issue.
Grandparents’ Access Rights
In general, Colorado family law has certain limitations on a grandparent’s rights to access rights to grandchildren. You may be able to petition a court for visitation in the event of a divorce, but that’s about it. Strictly speaking, then, a grandparent wouldn’t have a reasonable expectation to gain custody of a child in normal circumstances. However, the potential for emergency custody is slightly different. The courts recognize that emergency scenarios are special cases and decisions must be made in the best interests of the children.
Therefore, grandparents in Colorado may be able to file for emergency custody of their grandchildren. Indeed, if the children have been removed from their parents during an emergency, there is precedent in state legal statutes for grandparents to be preferred temporary guardians over foster parents. There can also be times when the children haven’t yet been removed that a grandparent may be able to file for emergency custody, which we’ll explore further in the next section.
That said, this shouldn’t be taken as an automatic right to emergency custody. Rather, the statute enables you to petition the court for consideration as the most suitable guardian. The same considerations may be afforded to the child’s other set of grandparents. There are also various other elements the courts have a duty to review before awarding emergency custody. Nevertheless, you are able to file a petition.
The Circumstances Emergency Custody May Be Appropriate
Filing for emergency custody is a serious endeavor. There has to be a clear and urgent need for the children to reside with the grandparents. Indeed, if the case is considered to be frivolous or malicious in some way, you may be subject to legal penalties. Therefore, it’s vital to consult with an attorney in Denver experienced in Colorado custody matters before taking any action. Nevertheless, it’s worth familiarizing yourself with the circumstances in which emergency grandparent custody might be appropriate. These can include:
Removal from parents
As previously mentioned, the usual circumstance in which emergency grandparental custody might be appropriate is if the children have been removed from parental care. It may be the case that this is on a temporary basis, while the parents undertake court-ordered rehabilitation. Though, in severe situations, the Colorado courts may terminate parental rights. In these instances, grandparents may file for emergency custody until a long-term solution can be established.
Parental inability to care for children
Grandparents could conceivably file for emergency custody in the event that neither parent is able nor willing to care for the children. This may be a case in which both parents have chosen to leave their children. Alternatively, both parents may have passed away or are incapacitated as a result of an accident. In some situations, if the parents are in prison, this can be a reason for grandparents to get emergency custody.
The children are in an unsafe environment
If the children are currently living in an environment that puts them at regular or imminent danger, this can allow grandparents to file a petition for temporary emergency custody. However, it’s important to understand that this can be difficult to establish. There need to be clear signs that the environment is seriously detrimental to the child’s mental or physical well-being.
There is evidence of abuse
Unfortunately, there may be times in which the grandchildren are subjected to physical, sexual, or emotional abuse by their parents. If it can be established that one parent is committing the abuse and they can be removed from the children, this may not be enough for grandparents to get emergency custody. However, if both parents are at fault or the children are likely to be further exposed to abuse, it may be appropriate for grandparental emergency custody to be filed.
The Process for Filing as a Grandparent
While grandparents can file for emergency custody in Colorado, it is not necessarily a simple process. Naturally, the courts want to make sure that parental removal and any guardianship decisions are in the best interests of the child. An experienced family attorney in Denver can be a vital collaborator in helping you to prepare for and navigate the often quite complex filing paperwork and representations. Indeed, the process itself can vary depending on the circumstances. In general, though, the process is as follows:
Filing a motion
In the case of parental removal, a party — whether it’s you, another individual, or an organization such as the Colorado Department of Human Services Division of Child Welfare — files a motion with the Colorado family courts. This will involve providing strong data to support that the child needs to be removed from parental custody immediately. The restriction of parental custody is something that Colorado courts are keen to avoid, so the reasons for removal need to show that time with the parent would “endanger the child’s physical health or significantly impair the child’s emotional development.”
Naturally, if the parents are otherwise absent or impaired, the motion for removal isn’t necessary. Rather, your attorney should help you to arrange to file a motion with the courts to temporarily appoint you as legal guardian. Alternatively, if there are other parties already petitioning the courts for emergency custody, you may be able to file a motion to intervene so you can present your case.
In emergency scenarios, the court will usually arrange for a motion hearing within about 24 to 48 hours. At this point, the court will review the immediate evidence of the case. In instances of removal, a judge may look at documents such as medical records, witness statements, photographs, and police reports, among others. In some instances, the court might decide the parent can continue custody in a supervised manner for further examination. Otherwise, the court will also review the parties being considered for emergency custody and appoint a guardian on a temporary basis until the next court date.
The next court date is commonly 2 weeks or so from the motion hearing. At this point, all parties involved will be able to present their full evidence in respect of custody. As a grandparent seeking emergency custody, this will usually relate to continuing your guardianship for a set period of time or until an additional review. You and your family law attorney will need to prepare evidence to demonstrate that you are financially, physically, and emotionally able to care for your grandchild. You may also need to show that you continue to be a more appropriate choice than another party. The courts also tend to take children’s preferences into account, so it can help if your grandchild wants to stay with you.
Working with Experienced Legal Professionals
Colorado law allows for grandparents to file for emergency custody. Nevertheless, this is never a guarantee and is necessarily a serious and complex process to embark on. It is vital that you work with an experienced Denver custody lawyer to get representation that ensures you and your grandchildren achieve the most positive outcome. Hulse Law Firm provides clients with the guidance and knowledge needed to navigate the nuances of the Colorado family court system. Feel free to reach out to us with any questions you have about your custody case.