Colorado Supreme Court Narrows Grandparent Visitation Standing: Post‑Adoption, Parents of a Deceased Parent Are Not “Grandparents” Under the Children’s Code

Introduction

In a closely divided decision with significant consequences for kinship care and post‑adoption contact, the Colorado Supreme Court held that, for purposes of Colorado’s grandparent visitation statute, standing hinges on a present-tense statutory definition of “grandparent.” Once a child is adopted by two new parents, the biological parents of a deceased mother or father are no longer “grandparents” under the Children’s Code and therefore lack standing to seek court‑ordered visitation.

The case involves three children whose biological parents tragically died in 2020. The maternal grandparents, Suzanne and August Nicolas (the Nicolases), were first appointed guardians and later adopted the children. The paternal grandparents, Jayne Mecque and Daniel Francis Sullivan (the Sullivans), sought grandparent visitation under section 19‑1‑117, C.R.S. (2021), and obtained an order in domestic relations court. The Nicolases later moved to vacate that order, arguing the Sullivans lacked standing post‑adoption. The trial court rejected the challenge, and a division of the court of appeals affirmed. The Colorado Supreme Court reversed.

At its core, the Court’s ruling answers a precise question: after a child’s adoption by two new parents, do the parents of a deceased parent still qualify as “grandparents” with standing to seek visitation under the Children’s Code? The majority says no, relying on the present‑tense wording of section 19‑1‑103(70)(a) and the legal effect of adoption under section 19‑5‑211. A three‑justice dissent argues the statute’s text, structure, and purpose compel the opposite conclusion, especially where the legislature expressly provided a separate “death of a parent” basis for standing without an adoption exclusion.

Summary of the Opinion

The Court, per Justice Boatright, reverses the court of appeals. It holds that:

• Standing is a threshold legal question reviewed de novo.
• The statutory definition of “grandparent” in section 19‑1‑103(70)(a) is written in the present tense—“a person who is the parent of a child’s father or mother.”
• After a final decree of adoption, the adoptee is “for all intents and purposes” the child of the adoptive parents, and prior parental rights and legal relationships are divested. See § 19‑5‑211(1)–(2).
• Accordingly, once the children were adopted by the Nicolases, the Sullivans were no longer the parents of the children’s legal father or mother. At the time the Sullivans filed their petition for visitation, they did not meet the statute’s present‑tense definition of “grandparent,” and thus lacked standing.
• The Court’s reading does not render other provisions superfluous, including the “adoption exclusion” in section 19‑1‑117(1)(b), which the legislature may have included as a belt‑and‑suspenders clarification.
• This interpretation accords with the constitutional primacy of parental decision‑making (Troxel v. Granville) and the parity of adoptive and biological parents’ rights (In re Adoption of C.A.).

The case is remanded for proceedings consistent with the opinion. Justice Berkenkotter dissents, joined by Chief Justice Márquez and Justice Gabriel.

Factual and Procedural Background

• 2020: Following the deaths of both biological parents (Brandon and Amanda), the probate court appoints the maternal grandparents (the Nicolases) as emergency, then permanent, guardians and approves a stipulated visitation plan for the paternal grandparents (the Sullivans).
• 2021: The Nicolases adopt the three children. Related matters are transferred to a stayed domestic relations case initiated by the Sullivans. The Sullivans then file a verified motion for grandparent visitation under section 19‑1‑117, and the domestic relations court grants visitation.
• Approximately 18 months later: The Nicolases move under C.R.C.P. 60(b)(3) to vacate the visitation order as void, arguing the Sullivans lacked standing post‑adoption because they were no longer “grandparents” as defined by statute. The trial court denies the motion; a division of the court of appeals affirms.
• Colorado Supreme Court: Grants certiorari to decide whether the Sullivans had standing to seek grandparent visitation after the adoption. It reverses, holding they did not.

Analysis

1) Precedents and Authorities Cited and Their Influence

• Standing and Statutory Interpretation
  • Aurora Public Schools v. A.S., 2023 CO 39: Standing is reviewed de novo.
  • Reeves‑Toney v. School District No. 1 (2019) and Ainscough v. Owens (2004): Standing is a threshold requirement; litigation must be authorized by statute for statutory standing.
  • Vickery v. Evelyn V. Trumble Living Trust (Colo. App. 2011) and Pomerantz v. Microsoft (Colo. App. 2002): The question is whether the statute grants persons in the plaintiff’s position a right to judicial relief.
  • Masterpiece Cakeshop, Inc. v. Scardina, 2024 CO 67; In re Marriage of Ikeler (2007); People v. Dist. Ct. (1986); Charlton v. Kimata (1991); Dep’t of Revenue v. Agilent Techs., Inc. (2019): Canonical tools—give effect to plain meaning, respect every word, do not add or subtract words from statutes.
• Parental Status and Adoption
  • People in Interest of K.L.W., 2021 COA 56: Colorado limits a child to two legal parents.
  • § 19‑5‑211(1)–(2), C.R.S.: Adoption makes the adoptee the child of the adoptive parent(s) “for all intents and purposes,” and divests prior parental rights; exception for stepparent adoption (§ 19‑5‑211(3)).
  • In Interest of Baby A, 2015 CO 72; D.P.H. v. J.L.B., 260 P.3d 320 (Colo. 2011): Adoption necessarily terminates prior parental rights; courts cannot recognize three legal parents in these contexts.
  • Armintrout v. People (1993): “Or” is disjunctive absent contrary intent—supporting parsing of statutory alternatives.
  • Johnston v. City Council (1972): Give effect to every word in a statute—used to elevate the present tense “is” in the definition of “grandparent.”
• Constitutional Parental Rights
  • People in Interest of J.G., 2016 CO 39; Troxel v. Granville, 530 U.S. 57 (2000); Prince v. Massachusetts, 321 U.S. 158 (1944): Fundamental parental rights; courts must give “special weight” to parental decisions about third‑party visitation.
  • In re Adoption of C.A., 137 P.3d 318 (Colo. 2006): Adoptive parents enjoy the same constitutional prerogatives as biological parents in directing a child’s upbringing.
• Other Authorities
  • Pugin v. Garland, 599 U.S. 600 (2023): Recognizes legislative “belt‑and‑suspenders” drafting to avoid gaps—used to rebut superfluity concerns regarding the adoption exclusion.
  • Out‑of‑state cases aligning with the majority’s post‑adoption standing limitation: Lindsay v. Walker (Utah Ct. App. 2015); Jocham v. Sutliff (Ind. Ct. App. 2015); Bopp v. Lino (Nev. 1994); Sowers v. Tsamolias (Kan. 1997).
• Dissent’s Authorities
  • In re Petition of R.A., 66 P.3d 146 (Colo. App. 2002): A parent’s death causes a lapse, not a termination, of parental rights—central to the dissent’s reading that death‑based standing survives adoption absent express limitation.
  • Beeghly v. Mack, 20 P.3d 610 (Colo. 2001): Expressio unius canon—where the legislature excludes adoption in one subsection but not another, the omission is presumed intentional.
  • People in Interest of B.C.B., 2025 CO 28: Reinforces the command not to add or subtract words from statutes and to avoid superfluity.

2) The Court’s Legal Reasoning

• Textual Focus on the Present Tense
  • Section 19‑1‑103(70)(a) defines “grandparent” as “a person who is the parent of a child’s father or mother.” The Court emphasizes the present tense—“is”—and refuses to read it as “is or was.”
  • Because adoption replaces the child’s “father or mother” with adoptive parents, the biological grandparents of the deceased parent are no longer the parents of the child’s current father or mother. Thus, at the moment the petition was filed, they did not meet the definition.
• Adoption as the Legal Reset Point
  • Under § 19‑5‑211, adoption fully reconstitutes the legal parent‑child relationship and divests prior legal ties (except in stepparent adoptions). The majority distinguishes death (which does not instantly sever grandparent status) from adoption (which does).
  • Section 19‑1‑103(105)(a) defines “parent” in the disjunctive—“natural” or “adoptive”—supporting the conclusion that, once adoption occurs, the adoptee’s parents are the adoptive parents.
• Standing at the Time of Filing
  • Standing is determined when a petition is filed. Because the Nicolases were already the legal parents when the Sullivans filed, the Sullivans were not “grandparents” as defined and lacked standing.
  • Equitable doctrines cannot cure jurisdictional defects; estoppel cannot supply standing. See Mesa Cnty. Valley Sch. Dist. No. 51 v. Kelsey (cited by analogy in the majority’s footnote).
• Harmony with the Statutory Scheme and Constitutional Principles
  • The majority rejects the superfluity critique about § 19‑1‑117(1)(b)’s “adoption exclusion,” explaining the legislature may use belt‑and‑suspenders drafting and that the exclusion still has work to do in other contexts (e.g., when a child is placed for adoption but the petition is filed before finalization).
  • The interpretation protects the fundamental liberty interest of parents (including adoptive parents) to direct a child’s upbringing, minimizing judicial intrusion into family autonomy.

3) The Dissent’s Counter‑Reading

Justice Berkenkotter’s dissent, joined by the Chief Justice and Justice Gabriel, presents a robust textual and structural critique:

• Three Independent Paths to Standing
  • Section 19‑1‑117(1) provides separate, disjunctive grounds to seek visitation: dissolution/separation (a), allocations to nonparents or placement outside the home (b) “excluding” adoption, and death of a parent (c) with no such exclusion.
  • By inserting a universal post‑adoption bar into subsection (c), the majority collapses (b) and (c), ignoring the legislature’s choice to include an adoption exclusion only in (b).
• “Grandparent” Is Broad; “Legal” Is a Distinct Term Used Elsewhere
  • Section 19‑1‑103(70)(a) includes grandparents “related to the child by blood, in whole or by half, adoption, or marriage.” It does not say “legal grandparents.”
  • By contrast, section 19‑1‑103(70)(b) expressly references “legal father or mother whose parental rights have been terminated,” demonstrating the legislature knows how to narrow the scope when it intends to. Death is a lapse, not a termination (R.A.).
  • Therefore, the parents of a deceased parent remain “grandparents” in the sense intended by (70)(a); the present tense “is” is not a temporal bar keyed to the filing date.
• Superfluity Concerns
  • If (70)(a) silently nullifies all grandparent status upon adoption, the adoption exclusion in (1)(b) and the termination‑based exclusion in (70)(b) do little work, undermining the principle against surplusage.
• Common‑Sense Semantics of Family
  • The dissent underscores that death does not render a parent a “former” parent in ordinary or legal parlance. The parent‑child tie persists as a fact of identity and kinship, even as legal custody and control pass to others.

4) Impact and Practical Implications

• Immediate Rule
  • In Colorado, after a child is adopted by two new parents, the parents of a deceased biological parent are not “grandparents” under section 19‑1‑103(70)(a) and therefore lack standing under section 19‑1‑117 to seek visitation.
• Timing Is Dispositive for Standing
  • Standing is assessed at filing. If grandparents file after an adoption is finalized, they will be out of court under this decision. The opinion does not decide what happens if a petition is filed before adoption and finalized afterward, but its logic suggests standing exists if present at filing.
• Effect on Existing Visitation Orders
  • Orders entered when petitioners lacked standing are vulnerable to collateral attack via Rule 60(b) as void; estoppel cannot confer jurisdiction. Counsel should assess the timing of petitions relative to adoption.
• Guardianship Versus Adoption
  • While a child is placed with guardians (pre‑adoption), both sets of biological grandparents typically retain “grandparent” status. Once a two‑parent adoption is finalized, only the adoptive parents’ kin qualify for “grandparent” status under the majority’s present‑tense reading.
• Stepparent Adoptions
  • Section 19‑5‑211(3) preserves one natural parent’s rights in stepparent adoptions; grandparents on that continuing parent’s side remain “grandparents.” Grandparents on the terminated parent’s side are excluded by § 19‑1‑103(70)(b) (termination).
• Constitutional Overlay
  • By narrowing standing, the decision narrows the set of cases in which courts must balance grandparent contact against parental autonomy under Troxel. Adoptive parents’ decisions receive the same “special weight” as biological parents’ decisions.
• Practice Pointers
  • For grandparents: Act early. If visitation is contemplated, file under section 19‑1‑117 before adoption is finalized. Explore negotiated, court‑filed agreements during guardianship or dependency proceedings.
  • For prospective adoptive parents: Recognize that post‑adoption, the statutory risk of compelled visitation from the deceased parent’s side is substantially reduced under this ruling.
  • For all parties: Consider whether a post‑adoption contact agreement is available and advisable under current Colorado law; such agreements are circumscribed and require careful drafting and court approval. Consult the current code, including any provisions recodified at section 14‑10‑124.4.
• Recodification Note
  • The opinion applies the 2021 Children’s Code provisions. In 2023, the legislature amended and recodified the grandparent visitation statute as section 14‑10‑124.4, C.R.S. (2024). The Court’s reasoning about the present‑tense definition of “grandparent” in section 19‑1‑103(70)(a) will guide interpretation unless materially changed by the recodification.

Complex Concepts Simplified

• Standing
  • Standing asks: Are you the kind of person the statute allows to bring this claim, right now? For grandparent visitation, you must fit the statute’s definition of “grandparent” at the time you file.
• Present‑Tense Definition
  • The phrase “is the parent of a child’s father or mother” means the person qualifies only if, at filing, they are the parent of whoever the law recognizes as the child’s current father or mother.
• Effect of Adoption
  • When adoption is finalized, the child’s legal parents become the adoptive parents. The law treats the child as if born to the adoptive parents, and legal ties to prior parents are severed (with limited exceptions, such as stepparent adoption).
• Adoption Exclusion
  • One statutory route to grandparent visitation—when a child is placed outside a parent’s home or parental responsibilities are allocated to a nonparent—contains an “adoption exclusion.” That exclusion bars petitions if the child has been placed for or legally adopted. The majority stresses its reading of “grandparent” does not make that exclusion meaningless.
• Troxel and “Special Weight”
  • Troxel requires courts to give special weight to a fit parent’s decision about a child’s contact with third parties. Adoptive parents have the same constitutional prerogatives as biological parents.
• Jurisdictional Defects and Estoppel
  • If a court lacks authority to hear a case because the petitioner has no standing, the resulting order is void and cannot be saved by equitable arguments like estoppel or consent.

Unresolved or Narrowed Questions

• Petitions Filed Before Adoption
  • The Court anchors standing to the filing date but does not decide whether a subsequently finalized adoption affects an already‑filed and properly‑standing petition. Practitioners should evaluate this scenario case‑by‑case.
• Contractual or Agreed Post‑Adoption Contact
  • The opinion addresses only statutory standing under section 19‑1‑117. It does not resolve the enforceability or availability of post‑adoption contact agreements, which are governed by separate provisions and limits under Colorado law.

Why This Decision Matters

• For kinship caregivers: It clarifies that, absent a timely filing or a different statutory pathway, grandparents on the side of a deceased parent cannot invoke the grandparent visitation statute after a two‑parent adoption by other relatives or nonrelatives.
• For adoptive parents: It strengthens the finality and integrity of adoption by limiting post‑adoption third‑party claims to visitation under the Children’s Code.
• For courts: It supplies a clear, administrable threshold rule—read the present‑tense definition of “grandparent” and assess standing at filing.
• For the legislature: The split highlights potential policy choices. If the General Assembly intends to preserve death‑based visitation standing post‑adoption, it can amend the definition or subsection (c) to say so explicitly.

Conclusion

In re the Parental Responsibilities Concerning Children K.M.S. establishes a sharp, text‑driven threshold rule: under the Children’s Code as applied here, only those who are presently the parents of the child’s current legal father or mother qualify as “grandparents” with standing to seek visitation. Adoption by two new parents substitutes legal parentage and extinguishes the prior parental line for standing purposes. The majority aligns this reading with the constitutional primacy of parental decision‑making and the legal finality of adoption.

The dissent contends the statute’s architecture points the other way, especially given a separate death‑based standing pathway without an adoption exclusion, and warns that the majority’s approach renders key provisions superfluous while clashing with ordinary understandings of enduring family ties after death. The dialog between the opinions invites legislative clarification.

For now, the controlling principle is clear: in Colorado, once a two‑parent adoption is finalized, the biological grandparents of a deceased parent cannot initiate a statutory grandparent visitation proceeding. Parties seeking to maintain intergenerational ties after a tragedy must plan with timing, forum, and alternative legal tools in mind.