Colorado Supreme Court Adopts “Present-Parent” Rule: Post-Adoption, Parents of a Deceased Parent Lack Standing for Grandparent Visitation

Introduction

In In re the Parental Responsibilities Concerning K.M.S., M.D.S., and R.E.S., 2025 CO 35, 569 P.3d 1215 (Colo. 2025), the Colorado Supreme Court resolved a recurring and sensitive question at the intersection of adoption law and grandparent visitation: whether the parents of a deceased mother or father retain standing to seek grandparent visitation after the child has been adopted by new parents. The case arose from extraordinarily tragic facts—both biological parents died, leaving three very young children. The maternal grandparents (the Nicolases) were appointed guardians and subsequently adopted the children; the paternal grandparents (the Sullivans) later sought court-ordered visitation.

The trial court granted visitation and then denied the adoptive grandparents’ motion to vacate for lack of standing; the court of appeals affirmed. The Colorado Supreme Court granted certiorari to decide if the paternal grandparents qualified as “grandparents” under the statute at the time they filed their petition. The Court reversed, holding that the statute confers standing only on those who are presently the parents of the child’s “father or mother” when the visitation motion is filed. Because adoption legally re-parents the child, the parents of a deceased biological parent are no longer “grandparents” under the statute following a completed adoption.

Summary of the Opinion

The majority (Justice Boatright, joined by Justices Hood, Hart, and Samour) held that:

• The statutory definition of “grandparent” in section 19-1-103(70)(a), C.R.S. (2021)—“a person who is the parent of a child’s father or mother”—is written in the present tense and imposes a temporal requirement. A person must be a grandparent at the time of filing to have standing under section 19-1-117.
• After a final decree of adoption, the adoptee is for all purposes the child of the adoptive parents (section 19-5-211) and previous parental relationships are legally extinguished. Consequently, the deceased biological parent is no longer a legal “father or mother,” and the deceased parent’s parents are not statutory “grandparents.”
• Accordingly, the paternal grandparents lacked standing when they filed for visitation after the children had been adopted by their maternal grandparents.
• The Court reversed the court of appeals and remanded for proceedings consistent with this opinion (which, given the jurisdictional defect, contemplates vacating the visitation order).

The majority grounded its statutory reading in:

• Plain text and ordinary meaning, refusing to add words like “was” or “has been” to expand the definition of “grandparent.”
• Colorado’s adoption statutes (section 19-5-211) and the “two-legal-parents” principle.
• Constitutional context emphasizing the fundamental right of parents—including adoptive parents—to direct the care, custody, and control of their children (Troxel v. Granville).

The dissent (Justice Berkenkotter, joined by Chief Justice Márquez and Justice Gabriel) would have affirmed, reasoning that:

• Section 19-1-117(1) creates three independent routes to grandparent visitation; the “death of a parent” route in subsection (1)(c) contains no adoption exclusion and ought not be limited by the adoption-focused exclusion in subsection (1)(b).
• The majority reads into the definition of grandparent a temporal limitation and a “legal” qualifier that the legislature did not include.
• Death causes a lapse, not a termination, of parental rights; the legislature knows how to write an exclusion (it did so in (1)(b) and section 19-1-103(70)(b)) but omitted one from (1)(c).

Factual and Procedural Background

In 2020, both biological parents, Brandon and Amanda Sullivan, died tragically, leaving three children: a two-year-old and infant twins (R.E.S., K.M.S., and M.D.S.). In probate proceedings, the court first appointed the maternal grandparents (the Nicolases) as emergency, then permanent, guardians. A stipulated visitation plan allowed the paternal grandparents (the Sullivans) ongoing contact with the children.

In 2021, the Nicolases finalized adoption of all three children. The probate matter closed and related issues moved to a domestic relations case. The Sullivans then filed a verified motion for grandparent visitation under section 19-1-117. The domestic relations court granted visitation. About 18 months later, the adoptive grandparents sought to vacate the order under C.R.C.P. 60(b)(3) as void for lack of subject-matter jurisdiction (standing). The trial court denied the motion; a division of the court of appeals affirmed. The Supreme Court granted certiorari on whether the Sullivans had standing to seek grandparent visitation after the adoption.

Detailed Analysis

Statutory Framework

The grandparent visitation statute, section 19-1-117(1), C.R.S. (2021), authorized a “grandparent” to seek reasonable visitation when “there is or has been a child custody case” upon one of three circumstances:

• (a) dissolution/legal separation of the parents’ marriage;
• (b) allocation of custody/parental responsibilities to a non-parent or placement of the child outside a parent’s home, “excluding any child who has been placed for adoption or whose adoption has been legally finalized”; or
• (c) the death of the child’s parent who is the child of the grandparent.

The Children’s Code defined “grandparent” (section 19-1-103(70)(a)) as “a person who is the parent of a child’s father or mother, who is related to the child by blood, in whole or by half, adoption, or marriage,” and excluded from that definition “the parent of a child’s legal father or mother whose parental rights have been terminated” (section 19-1-103(70)(b)).

Adoption law (section 19-5-211) provides that upon a final decree of adoption the adoptee is “for all intents and purposes” the child of the petitioner, and former parents are “divested of all legal rights and obligations” (with limited stepparent exceptions).

Precedents and Authorities Cited

• Parental rights cases and constitutional backdrop:
  • Troxel v. Granville, 530 U.S. 57 (2000) (fundamental right of fit parents to make decisions concerning the care, custody, and control of their children; courts must give “special weight” to parental determinations).
  • People in Interest of J.G., 2016 CO 39, 370 P.3d 1151 (parental rights as a fundamental liberty interest).
  • In re Adoption of C.A., 137 P.3d 318 (Colo. 2006) (adoptive parents have the same rights as natural parents in directing a child’s upbringing).
• Adoption and parentage:
  • People in Interest of K.L.W., 2021 COA 56, 492 P.3d 392 (Colorado adheres to a “two-legal-parents” limitation).
  • In Interest of Baby A., 2015 CO 72, 363 P.3d 193 (adoption finality and the exclusivity of parentage).
  • D.P.H. v. J.L.B., 260 P.3d 320 (Colo. 2011) (stepparent adoptions entail termination of the non-custodial parent’s rights).
• Statutory construction:
  • Dept. of Revenue v. Agilent Techs., Inc., 2019 CO 41, 441 P.3d 1012 (courts may not add or subtract words; apply clear language as written).
  • Johnston v. City Council, 493 P.2d 651 (Colo. 1972) (give effect to every word).
  • Armintrout v. People, 864 P.2d 576 (Colo. 1993) (“or” is disjunctive absent contrary intent).
  • Pugin v. Garland, 599 U.S. 600 (2023) (legislative “belt-and-suspenders” drafting can avoid gaps).
• Standing and jurisdiction:
  • Ainscough v. Owens, 90 P.3d 851 (Colo. 2004) (standing is a threshold, jurisdictional question).
  • Masterpiece Cakeshop, Inc. v. Scardina, 2024 CO 67, 556 P.3d 1238 (statutory standing is a matter of interpretation, reviewed de novo).
• Other jurisdictions on post-adoption visitation standing:
  • Lindsay v. Walker, 356 P.3d 195 (Utah Ct. App. 2015) and Jocham v. Sutliff, 26 N.E.3d 82 (Ind. Ct. App. 2015) (former biological grandparents lack standing post-adoption under similarly worded statutes).
  • Bopp v. Lino, 885 P.2d 559 (Nev. 1994) and Sowers v. Tsamolias, 941 P.2d 949 (Kan. 1997) (adoption abrogates legal relationships to natural grandparents).

The Court’s Legal Reasoning

The majority’s analysis proceeds in three main steps:

1. Present-tense definition controls standing at the time of filing.

   The definitional clause—“a person who is the parent of a child’s father or mother”—uses the present tense “is.” The Court refuses to read the statute as if it said “is or was” or “has been.” That choice, the Court holds, imposes a temporal requirement: a petitioner must be a “grandparent” when the petition is filed. Because standing is jurisdictional, courts cannot cure a deficit by estoppel or consent.

2. Adoption re-parents the child and extinguishes prior parental status.

   Under section 19-5-211, a final adoption decree makes the adoptee “for all intents and purposes” the child of the adoptive parents and divests prior parents of legal rights and obligations. Read with the parent definition (section 19-1-103(105)(a)), the disjunctive “natural parent” or “parent by adoption” means that, post-adoption, the deceased biological parent no longer holds the legal status of “father” or “mother.” Therefore, the deceased parent’s parents are not currently the “parents of the child’s father or mother.”

3. Harmonizing related provisions and constitutional context.

   The Court rejects the argument that its reading renders the adoption exclusion in section 19-1-117(1)(b) superfluous. That exclusion covers additional situations (e.g., during placement for adoption) and reflects permissible “belt-and-suspenders” drafting. The Court also emphasizes that its interpretation comports with Troxel and the fundamental liberty interest of parents—including adoptive parents—to make childrearing decisions without undue state interference.

Because the adoption preceded the Sullivans’ filing, they lacked standing at the moment of filing. The Court therefore reverses and remands.

The Dissent’s Counter-Analysis

The dissent takes a text-first approach to section 19-1-117(1) and section 19-1-103(70), arguing that:

• Section 19-1-117(1) creates three independent pathways to visitation; subsection (1)(c) (death of a parent) contains no adoption exclusion, unlike subsection (1)(b). By inserting a post-adoption bar into (1)(c), the majority collapses the two and contravenes the legislature’s deliberate design.
• Section 19-1-103(70)(a) does not say “legal father or mother” or otherwise temporally limit the definition. The use of “is” does not transform the definition into “present legal parent only.”
• Death results in a “lapse,” not a termination, of parental rights (citing In re Petition of R.A., 66 P.3d 146 (Colo. App. 2002)). The legislature knew how to exclude in cases of termination (section 19-1-103(70)(b)) and adoption (section 19-1-117(1)(b)), but did not do so in (1)(c).
• Reading “grandparent” to mean “present legal grandparent” makes both the adoption exclusion and the termination-based exclusion largely redundant, violating anti-superfluity principles.
• Examples show potential anomalies. If the child is adopted by an aunt, the aunt’s parents could still qualify as “grandparents” going forward because the aunt is now a legal “mother,” yet the deceased parent’s parents would be barred—a result the dissent views as textually and practically unsound.

Why the Majority’s Approach Prevailed

The Court privileged statutory text read in tandem with the adoption code and the constitutional presumption favoring parental autonomy. The present-tense definition, the adoption statute’s re-parenting and divestiture framework, and Colorado’s two-legal-parents limit together supplied a clear rule: after a valid adoption by two new parents, the parents of a deceased biological parent no longer fit the statutory definition of “grandparent” for purposes of standing to seek visitation.

The majority acknowledged potential overlap and redundancy in the statutory scheme but treated it as deliberate legislative caution rather than evidence of a contrary intent. And because the statute was deemed unambiguous, the Court declined to import policy-based exceptions into subsection (1)(c).

Impact and Practical Implications

Immediate Consequences

• The visitation order obtained by the paternal grandparents is void for lack of standing and must be vacated on remand.
• Adoptive parents’ decisions regarding intergenerational relationships receive heightened deference by operation of the standing rule and Troxel’s “special weight” standard.

Prospective Effects in Colorado

• Timing is dispositive. Grandparents whose child has died must file for visitation—if at all—before any adoption is finalized by two new parents. After adoption, they will not qualify as statutory “grandparents” for purposes of standing.
• Guardianship vs. adoption. While nonparent custody/guardianship can trigger a route to visitation under section 19-1-117(1)(b), a subsequent adoption may extinguish both the subsection (1)(b) route (via its adoption exclusion) and “grandparent” status under the present-relationship rule adopted here.
• Shifting family statuses. Adoption can create new statutory grandparents (e.g., if an aunt becomes a legal mother, her parents become grandparents under section 19-1-103(70)(a)) and eliminate prior ones. Counsel must reassess standing dynamically as family statuses change.
• Existing orders and future modifications. The Court’s rule focuses on standing at the time of filing. Orders validly entered when standing existed may not be voided solely by later adoption, but future enforcement or modification may be constrained by statutory exclusions. The Court did not decide that scenario here; practitioners should proceed cautiously.
• Alignment with other jurisdictions. Colorado now aligns with states holding that a post-adoption change in legal parentage extinguishes former biological grandparents’ visitation standing under similar definitions.
• Potential legislative attention. The General Assembly recently recodified portions of the grandparent visitation scheme (see 2023 re-codification to section 14-10-124.4). If the legislature intends for death-based standing to persist notwithstanding adoption, it may clarify the statute explicitly. Until then, the present-relationship rule governs.

Complex Concepts, Simplified

• Standing. The legal right to bring a claim. If you lack standing, the court lacks authority to grant relief. Standing is evaluated at the filing moment and cannot be created by agreement or estoppel.
• Present-tense statutory definition. When a statute uses “is” (not “was” or “has been”), courts generally require the status to exist when the action is filed.
• Adoption’s legal effect. Adoption legally reassigns parentage. The adoptee becomes, for all legal purposes, the child of the adoptive parents; prior parental rights and obligations are extinguished (with limited exceptions, e.g., certain stepparent contexts).
• Two-legal-parents principle. Colorado recognizes no more than two legal parents at a time. This principle informs how adoption interacts with other family-law rights.
• “Belt-and-suspenders” drafting. Legislatures sometimes repeat or overlap restrictions to ensure there are no gaps. Overlap does not necessarily imply redundancy that a court must eliminate.
• Death vs. termination of parental rights. Death causes a lapse of parental rights; termination is a judicial act. The dissent argues that statutory exclusions target termination, not death. The majority counters that adoption, not death, is the dispositive legal event here.

Practice Notes

• Grandparents seeking visitation following a parent’s death should file before any adoption is finalized. Delay can be outcome-determinative.
• Where adoption is contemplated, consider negotiating written post-adoption contact arrangements where permitted under Colorado law. While such agreements and their enforceability can vary by context, they may preserve relationships that litigation cannot.
• Adoptive parents assume the same constitutional prerogatives as biological parents. Any court-ordered contact must give “special weight” to the adoptive parents’ determinations (Troxel).

Conclusion

In re K.M.S. announces a bright-line, text-driven rule: for purposes of standing to seek grandparent visitation in Colorado, a “grandparent” must be the parent of the child’s current “father” or “mother” when the petition is filed. Adoption transforms legal parentage; once a child is adopted by new parents, the parents of a deceased biological parent are no longer statutory grandparents and cannot invoke the grandparent visitation statute. The decision reinforces the primacy of adoptive parents’ autonomy, harmonizes the visitation scheme with adoption law and the two-parent limit, aligns Colorado with the prevailing approach in other jurisdictions, and places a premium on procedural timing. While the dissent offers a compelling textual and policy critique—emphasizing the legislature’s separate, unqualified death-based pathway—the majority’s present-relationship rule now governs, and it will shape how families, counsel, and courts navigate intergenerational contact in the aftermath of adoption.