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Mary Ann Burmester on Grandparents’ Rights

Mary Ann BurmesterIn some circumstances during divorce, grandparents may seek custody of or visitation with their grandchildren. There are many considerations a judge makes before granting grandparents these rights. Mary Ann Burmester, an Albuquerque family lawyer, discusses under what circumstances grandparents can receive guardianship or visitation, and provides advice to grandparents who are considering going to court to request these rights.

Hosted By: Diana Shepherd, Editorial Director of Divorce Magazine
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Read the Transcript of this Podcast Below.

What rights do grandparents have to their grandchildren?

Grandparents have either the rights to visit with their grandchildren, under certain circumstances, or if their parents are unable or unwilling to raise them on their own, the grandparents can either seek custody or, more commonly, guardianship of the grandchildren. Again, it has to be under certain circumstances, but basically that’s what we think of when we talk about grandparents’ rights: either visitation or actually raising them in a custody arrangement or guardianship situation.

Under what circumstances can a grandparent get court-ordered visitation?

Each state varies dramatically on when a grandparent even has the ability to ask a court to order visitation. In New Mexico, there are four specific fact patterns that give a grandparent that ability to go to court, which we call standing. First, the biological parent is deceased or the child is being put up for adoption or the mother and father are currently undergoing a divorce or previously divorced, and there’s a visitation schedule in that divorce proceeding. Lastly, the mother and father were not married to each other but they had a parentage case either presently in the courthouse or a prior one with an existing visitation schedule.

The one situation that I get frequent questions about is a mother and father are still together as a couple, either married or unmarried, and they have cut off contact with the grandparents. If the mother and father’s relationship is intact and they both agree, or even one of them says, I don’t want the grandparents seeing the grandchildren, in that case there’s no way to get in front of a judge and override the parental decision to keep the grandparents out of the children`s life.

What advice would you give someone considering going to court to seek visitation of a grandchild?

I would caution them to think about the larger family dynamic. If you have to sue your own child to get access to your grandchild, what is that going to do to the bigger family situation? What I do see with some frequency is, one parent is out of the picture – either voluntarily or maybe they’re incarcerated or maybe they’ve just walked away from the family – and the grandparents are now trying to get access to that grandchild.

If it’s a visitation situation, you have to meet those standing requirements: divorce, paternity, death of a parent, or the child’s been put up for adoption. You also have the burden of proving to the judge of why it’s in this child’s best interest to have court-ordered grandparent visitation. That means you have to have had a very regular and frequent contact with that child, that grandchild has to be suffering if you’re not seeing them.

If, for example, you’re a grandparent who saw their grandchild, perhaps during the holidays and in the summer, and maybe talked to them once a month, you’re not going to get court-ordered visitation under those circumstances because you weren’t that actively involved in the grandchild’s life. On the other hand, if you saw that grandchild several times a week – maybe they stayed over at your house, maybe you went on vacation together, you went to their school functions and their sports activities, and that grandchild is very well bonded with you – in that case the judge will be more inclined to order visitation of that grandchild on a limited basis.

If the parents are unable or unwilling to take care of their child, can a grandparent get actual custody?

Yes. We normally look at guardianship as opposed to custody. The word custody under New Mexico law really is used in parents getting divorced or parents who are not married. But the concept to the general public is, I want to be able to raise my grandchild. Their parents are unable or unwilling to do so, I don’t want my grandchild to go into foster care, I want to step up to the plate raise that child.

You can at that point petition the court. The parents are going to have to be notified of the court proceeding, and they have to have the opportunity to come in and express their wishes to the judge either in favour of the grandparents taking custody or raising the grandchild or opposing it. If the parents really are unable to take care of that child, then the grandparents can petition the court, present their case. If they convince the judge that that’s best for the child, then they can go on and raise that child.

Does a grandparent’s guardianship of a child terminate the parents’ rights to that child?

No, it doesn’t. That’s one of the reasons why the courts here generally look at a guardianship as opposed to custody. A grandparent getting custody of a grandchild does not terminate the parental rights of the parents. But when we look at our guardianship laws, our kinship guardianship laws, there are certain elements that have to be proved in order to be appointed temporary guardian of the grandchild. If you’re appointed temporary guardian, it’s only good for six months. You then have to go and convince the judge that the circumstances are still there, which means the child needs to be taken care of someone else. Under kinship guardianship, the parental rights are not terminated, they are suspended.

Is it ever possible to get permanent guardianship of a grandchild?

Yes. In fact, in family law in general, a lot of times temporary orders end up being permanent in the sense that if nobody goes to court to change or end the arrangement, it lasts through the child’s minority up until the child is legally emancipated. It’s typically age 18.

But the process is, you first have to ask. You file a petition to be appointed guardian of the child, and that petition is going to involve a longer hearing, more evidence, and more witnesses. It won’t be set for a court date for six or 10 months, or 12 months, down the road. In the meantime, you’re asking the judge to say, until you get to look at the overall case, I need to be able to make decisions about the child now, so can you please appoint me as the temporary guardian. That’s why we have that temporary step, so that there’s someone with legal authority over the child until the court can rule on what should happen on a longer-term basis.

How can a parent regain custody of their child and end the guardianship?

The burden is on the parent to prove to the judge that the circumstances that existed, giving rise to the need for guardianship, are no longer there. Let me give you a few examples: what I see today is, a parent who is a very good parent – has a job, has a home, a decent standard of living – that person gets involved in a car accident and winds up getting addicted to opioids, to Oxycontin, and other heavy pain medications. When the prescription runs out, they sometimes turn to illegal drugs – heroin and meth are popular ones.

Now this person’s life is shattered. They lose their job, they lose their home, they’re not able to care for the child. The grandparents step in and are appointed the kinship guardian of the child, sometimes with the parents consent and sometimes over their objections. That parent who had the addiction issues, or lost their job and their home, has to convince the judge that they’ve dealt with their problems and they’ve been clean and sober. We look for a period of generally at least a year. They’ve maintained some sort of job, they have their own home, they’ve maintained appropriate contact with the child – which is a grey area, because you don’t want a parent who is high on prescription drugs, or any other type of drug, showing up around a four-year-old. On the other hand, if they see the child for a couple of hours each week – sometimes under the supervision of the grandparent or a friend – they’ve communicated with the child either by phone or by text messaging, they’ve provided some sort of financial support, doesn’t have to be formal child support, they’re doing what they can to parent.

If their track record for a period of time shows that they’ve gotten their act together, they’ve recovered, and they really are able to parent that child safely, then the judge will end the guardianship and restore custodial rights to the parent. It’s not an easy process, but it can be done.

What advice would you give someone who is considering seeking guardianship of their grandchildren?

As a parent or a grandparent, you’re having to choose between your adult child and your grandchild. It really is a difficult situation. My potential clients, they struggle. You want to be able to help your adult child parent your grandchild. But sometimes that adult child is unable or unwilling to heed your advice. So then you have to step in and say, I need to protect my grandchild. I want my potential clients to know it is going to drive a huge wedge between themselves and their adult child, so they have to make that Sophie’s choice. They have to make that difficult call: Who am I going to choose to help protect?

Family law is a very messy area. When a husband and wife, or a man and a woman, are fighting over custody of a child, that’s one thing, but now you have a multigenerational component. I ask them to think again long and hard, what is their ultimate goal, what consequences are they willing to live with and which ones are they not? In some cases, with a parent with a substance abuse addiction and a child really being vulnerable, they do need to look at the grandchild and at the same time encourage and support the parent to get their drug treatment taken care of, to get their life together. Let them know we’re not trying to take away your child, we really are not seeking to do that, but we feel honour bound and obligated to try and protect the child.

Sometimes after a few years of the guardianship situation and as the adult parent begins to get their act together, the grandparents will ease in transition, let the child have some overnight visits with the parent, maybe even the weekend. There is a gradual transition. I tell my clients, if you’re in your 60s and you’re going to take kinship guardianship of a 10-year-old, you’re going to have a teenager, you’re going to have one to put through college. Are you really ready to take on this commitment?

Because the worst thing in the world for the child is to no longer be living with the parent, then spend several years with the grandparent, and then have the grandparent say, I’m too old, too frail or too ill to do this, and then turn the child over at that point possibly to foster care. You’re looking at a long-term commitment with kinship guardianship. Even if you hope your adult child can recover and be a responsible person in a couple of years, don’t count on it.

If neither biological parent can afford to pay child support, can a third party, who has obtained custody, sue the grandparents for support?

The short answer to that is no. A grandparent who takes on guardianship is not obligated to financially support the child. Technically, the parent is still legally responsible for that, so no, a third party cannot sue a grandparent to pay child support.

If a grandchild was given up for adoption, does a grandparent have any rights to see him/her?

Yes, and that is under the Grandparent’s Visitation Privileges Act. That’s one of the four categories that gives a grandparent standing to go into court – i.e., a child is being put up for adoption and you are the biological grandparent of that child, and you had a good solid, steady relationship with that child. We see this more when the parents’ rights are being terminated for abuse and neglect by the state of New Mexico.

For example, say the child is seven years old but that child knew the grandparents and had an ongoing relationship and is now being put up for adoption. In that situation, the grandparent can come in. If the baby’s a couple of months old, there’s no time to have established a bond and an ongoing relationship, then in that case it’s less likely that a grandparent would get court-ordered visitation with a baby that’s being put up for adoption.

Does a divorced step-grandparent have any rights to visitation with their step-grandchildren?

Most likely not. I don’t believe that it has been litigated or a judge has made a decision, but we normally look at a step-grandparent who is married to the biological grandparent of the child, and they as a couple get visits with the grandchild. But I haven’t seen a situation in which a step-grandparent was seeking visitation with step-grandchildren after the step-grandparent was no longer married to the biological grandparent.

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