The relationship between grandparents and their grandchildren is something special. However, it is not a relationship that is always granted legal protection. Parents have the ultimate authority when it comes to determining whether and how often grandparents get to see their grandchildren. Courts will only step in to give grandparents visitation rights and privileges or custody of their grandchildren in a very limited number of circumstances.
At Matteucci Family Law, Attorney Bob Matteucci helps grandparents across the state of New Mexico who is concerned about the welfare of their grandchildren assert their privileges and protect their loved ones.
Helping Grandparents Get Visitation Privileges
Almost every grandparent out there would love to spend more time with their grandchildren. Making memories with them and loving on them is often the best part of your golden years. However, it is up to parents to decide if and when grandparents get to spend time with their grandchildren. In many ways, spending time with grandchildren is more of a privilege than a right.
Parents automatically have the right to spend time with their own children and can ask a court to help them enforce that privilege. Parents also have the right to decide who else their children spend time with. One or both parents can decide they do not want their children to spend time with their grandparents or other members of the family.
However, under New Mexico law, there are certain circumstances when grandparents can ask a court to overrule the parents and grant them visitation privileges. If at least one of the following is true, a court may be willing to step in and help grandparents get time with their grandchildren:
- The child’s parents have begun divorce or separation proceedings
- One or both of the child’s parents have died
- One or both of the child’s parents have lost or given up their parental rights or visitation rights
- The child is being put up for adoption
- If the child is under six years old, lived with the grandparents for at least three months, and was later removed from the grandparents’ home by the parent or someone else
- If the child is over six years old, lived with the grandparents for at least six months, and was later removed from the grandparents’ home by the parent or someone else
- Other extraordinary situations where the grandparent-grandchild relationship is severed, and there is no indication that a choice was made to protect the child from the grandparent.
Meeting one of these conditions gives a grandparent standing to ask the court to listen to their side of the story and potentially grant them visitation privileges. There is no guarantee visitation privileges will be granted. Instead, a judge will hear the case and decide what is in the best interest of the child.
When determining what is in the best interest of the child, the judge will consider:
- The grandparents’ relationship with both the child and his or her parents
- Any visitation arrangements that existed prior to the grandparents petitioning the court
- How the grandparents’ visitation might affect the child
- Whether either grandparent has had convictions for abuse or neglect of a child
- Any caretaker role the grandparents might have assumed prior to asking the court for visitation
- The wishes of the parents
- If the child is old enough to have an opinion, the court will also take his or her wishes into consideration
- Anything else affecting the child’s best interests
After weighing these factors, the judge will decide if grandparent visitation is appropriate. The court may impose limitations or conditions on any visitation privileges and may revise its decision or revoke visitation if circumstances change and it is no longer in the best interest of the child.
Attorney Bob Matteucci helps families across the state of New Mexico navigate disputes over grandparent visitation. As discussed above, these emotionally fraught cases can be decided by a court, but visitation is also something that can be negotiated. Whether you want to litigate your disagreement, or would rather discuss your family’s issues out of the public eye, Bob can help you figure out what your options are.
Seeking Guardianship And Custody Of Your Grandchild
While some grandparents have to fight for the privilege to visit their grandchild, others are stepping up and raising their grandchild full-time. When this happens, the grandparents may want to consider seeking legal guardianship of their grandchild.
Under New Mexico law, grandparents may seek kinship guardianship of their grandchildren. Kinship guardianship is a legal process that allows a relative, godparent, member of a child’s tribe or clan, or another adult who has a significant bond with a child in need, to come forward and take physical and legal custody of the child.
The guardian steps into the role of the parent, taking physical and legal custody of a child whose parents cannot or will not take proper care of them. Oftentimes the parent’s inability or unwillingness to parent is the result of physical disability, mental health issues, substance abuse, or incarceration.
Grandparents often step in informally when their grandchild needs them, and the kinship guardianship formalizes that relationship. It allows the grandparent to obtain medical and dental care for the child, make decisions about the child’s education, and apply for financial assistance from various state agencies on behalf of the child. The grandparent, as kinship guardian, can also seek child support from the parents.
Courts recognize and protect the relationship between the child and his or her kinship guardian in order to promote family stability. While it is possible for parents to petition for the reinstatement of their rights, the courts will look at what is in the best interest of the child. These benefits make the lengthy and somewhat complex guardianship appointment process worthwhile.
In order to seek guardianship, the grandparent must file a petition with the court alleging that at least one of the following is true:
- The custodial parents have given their written consent to appoint a kinship guardian
- The custodial parents’ parental rights have been terminated or suspended
- The child has lived with the individual petitioning for kinship guardianship for at least 90 days without the child’s parents present
- Extraordinary circumstances
And also prove:
- You have a close relationship with the child.
- You are a responsible adult with the capacity to care for the child. The court will want to know about your living arrangement, finances, and criminal history.
- It would be in the best interest of the child for you to take custody.
Attorney Bob Matteucci has helped many grandparents formalize the relationship they have with their grandchildren in the eyes of the state by seeking kinship guardianship. This important process gives the family greater stability and ensures the children are protected going forward.
CONTACT A NEW MEXICO FAMILY LAW ATTORNEY ABOUT GRANDPARENT’S PRIVILEGES
Perhaps the most important thing for concerned grandparents to know is that there are options for making sure their grandchild is properly taken care of. If you’re a grandparent who is either interested in visitation with your grandchild or serving in a kinship guardian role, let Bob Matteucci of Matteucci Family Law review your case today. Call to schedule your consultation.