Understanding Grandparents' Rights in New Mexico

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.

How Do You File for Grandparents' Rights in NM?

In order to be able to file a Petition for Grandparent Visitation in New Mexico, 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 lack standing and 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.

Evaluating Grandparent Visitation Cases in NM

Assuming you meet one of the five categories described above for “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 of a child
• 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.

Ready to Assert Your Visitation Rights? Contact Us Now
(505) 431-4716
or Request a Consultation.