Grandparent’s Rights in New Mexico
NM Divorce & Custody Law LLC understands how important grandparents are in the lives of children. Grandparents may find themselves separated from their grandchildren because of a strained relationship with the parents, divorce, relocation and death of a parent. Ms. Burmester can help establish grandparents’ rights, so you can continue a strong bond with your grandchildren.
Grandparents see a family lawyer for two main reasons:
- They want the right to visit their grandchildren
- They are raising their children and want to make the arrangement “legal”
Ms. Burmester can help you accomplish both of these reasons.
New Mexico has a law known as the “Grandparents Visitation Privileges Act.” The word, “privileges” in the title is key. Grandparents do not have an automatic right to see their grandchildren over the objection of one or both parents. That is because the law presumes parents have the right to raise their children as they see fit (with a few exceptions), including the right to decide with whom and how the children interact with other people, such as extended family members and grandparents.
Under the statute, a “grandparent” means the biological grandparent or great-grandparent, or a person who becomes a grandparent or great-grandparent due to the adoption of the child by a member of that person’s family. Note that it does not include step-grandparents or step-great-grandparents.
In order to be able to file a Petition for Grandparent Visitation, the grandparent must have “standing” to bring the court case. There only five ways to have “standing” –
- There is a past or pending divorce, legal separation or paternity case involving the specific child.
- One or both parents of the child are deceased.
- The child lived with the grandparent for at least three months if the child was less than six years old at the beginning of the three-month period and that child was later removed from the grandparent’s home by the parent or other person.
- The child lived with the grandparent for at least six months if the child was more than six years old at the beginning of the six-month period and that child was later removed from the grandparent’s home by the parent or other person.
- The child is being put up for adoption in certain situations.
If you do not fit the criteria of at least one of the categories, then you cannot even get your foot in the courthouse door to ask a judge to force visitation with the grandchild over one or both parents’ objection.
How a Judge Decides
Assuming you do have “standing”, you will have to prove several other factors before a judge awards visitation with a grandchild. By statute (NMSA §40-9-2), the judge must assess:
- Any factors relevant to the best interests of the child
- Prior interaction between the grandparent and child
- Prior interaction between the grandparent and each parent of the child
- Present relationship between the grandparent and each parent of the child
- Visitation arrangements that were in place before filing the grandparent visitation petition
- Effect visitation with the grandparent will have on the child
- Any prior convictions of the grandparent for physical, emotional or sexual abuse or neglect
- Whether the grandparent has previously been a full-time caretaker of the child for a significant period of time
In addition to these factors, case law instructs the judge to also consider:
- The love, affection and other emotional ties which may exist between the grandparent and child
- The nature and quality of the grandparent-child relationship and the length of time it has existed
- Whether visitation will promote or disrupt the child’s development
- The physical, emotional, mental and social needs of the child
- The wishes and opinions of the parents
- The willingness and ability of the grandparent to help and encourage a close relationship between the parent and child
Under the 14th amendment of our national Constitution, parents have a fundamental liberty right to make decisions about the care, custody and control of their children. That means it can be very difficult to get the judge to order visitation by a grandparent over the objection of one or both parents.
Grandparents Raising Grandchildren
A grandparent stepping in and actually raising grandchildren, as opposed to babysitting or visiting them, is a growing trend across the country, including in New Mexico. The most common scenario seen is a mother with one or more children (usually with absent fathers) who suffers from drug or alcohol abuse or a significant mental health disorder. The mother drops the kids off with the grandparents, disappears for weeks or months, and then returns one day wanting to take the children back with her. The pattern continues to repeat itself, disrupting the children and emotionally devastating the grandparents who become worried for the grandkids’ safety and well-being.
New Mexico passed the “Kinship Guardianship Act” to help stop the yo-yo effect of children moving in and out of their grandparent’s home at the whim of a parent who cannot consistently perform the duties of a responsible, safe parent.
By statute (NMSA §40-10B-5) only certain persons have the right (“standing”) to file a petition and ask the Court to appoint him or her as a Kinship Guardian:
- A “kinship caregiver” which is a non-parent adult (relative, godparent, member of the child’s tribe or clan, or adult with whom the child has a significant bond) and the child lives with that adult who cares for the child live a responsible parent; or
- A caregiver over age 21 who doesn’t meet the definition of “kinship” but who has been nominated to be guardian of the child by the child, if the child is age 14 or older; or
- A caregiver designated in writing by a parent to be the guardian
A Kinship Guardian can only be appointed if the judge finds:
- The child’s parent is living and has consented in writing; or
- The child’s parent is living but all parental rights to that child have been terminated or suspended by court order; or
- The child has lived with the person seeking appointment as guardian for at least 90 days (without the parent) before the petition is filed and the parent having legal custody of the child is currently unwilling or unable to provide adequate care and supervision of the child; or
- There are extraordinary circumstances (this is a very high burden of proof)
If the judge does appoint a Kinship Guardian, then the judge can also require a parent to pay child support to the guardian. The judge can also set up a visitation schedule between the child and parent, if such visits are in the child’s best interest.
The judge has the power to appoint a Guardian ad Litem (lawyer for the child) if a parent participates in the court case and opposes the appointment of the Kinship Guardian. Anyone – including the child who has reached age 14 – may ask the judge to end the Kinship Guardianship. The person making this request must have a transition plan to show how the child will be reintegrated into the parent’s home or that of a new guardian.
NM Divorce & Custody Law LLC protects Grandparents Rights
The lawyer at NM Divorce & Custody Law LLC in Albuquerque work to protect grandparents’ rights. Mary Ann R. Burmester holds a Master’s Degree in Gerontology and uses this education and experience to advocate for grandparent visitation rights and custody issues. We know New Mexico family law and will work on your behalf in the best interest of the children. Contact us today and see how we can help make sure you don’t lose your relationship with your grandchildren.