When parents split up, grandparents often suffer because they suddenly find themselves unable to visit with their grandchildren. There are other cases in which grandparents are raising their grandchildren, but the arrangement is not yet formalized. What does New Mexico family law say about grandparents’ rights? Fortunately, there are circumstances in which grandparents can petition the courts to permit visitation or to have their caregiver relationship with their grandchildren legally recognized.
A New Mexico family law attorney can explain grandparents’ rights and your legal options in cases like those described above. Family law attorney, Bob Matteucci, has helped grandparents seek visitation and caregiver rights, and can get started on your case today.
When Grandparents Can Seek Visitation
Although grandparent visitation falls under the guise of “grandparents’ rights,” it’s more accurate to think of visitation as a privilege. In other words, unlike parents who have the right to seek custody and visitation of their own children, grandparents do not automatically have the right to do so. In many situations, one or both parents can keep the grandparents from seeing their grandchildren.
But there are certain circumstances in which the grandparents can petition the court for visitation rights with their grandchildren. One of the following would have to be true:
- Divorce or separation proceedings have started between the parents
- One or both of the child’s parents have died, lost parental rights or visitation rights
- In some situations when 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
Bear in mind, you need to meet one of the above conditions to ask the court to permit visitation. If you don’t, then the parents can deny you any ability to see your grandchildren. It should also be noted that just because you meet one of these criteria doesn’t mean the judge will award you visitation with the grandchildren. Doing so will only get you in front of a judge, who must then decide if your visitation with your grandchildren is in their best interests.
How Will A Judge Determine Visitation For Grandparents Who Qualify?
So how will the judge decide whether it’s in the best interests of the grandchildren to allow visitation rights for the grandparents? If the grandparents fit into one of the categories listed above and petition the court for visitation, the judge will evaluate:
- 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
- Anything else affecting the child’s best interests
Basically, the court will examine a number of factors concerning three parties: the grandparents, the parents, and the child. Every grandparent visitation case is different, so be sure to let your attorney know of any relevant information affecting any of these individuals.
Grandparents’ Rights When Informally Raising The Child
Grandparent visitation raises a second and related issue: what if the grandparents have been unofficially raising the child because of problems with the parents? These situations are not uncommon. As an example, perhaps the father abandoned the family and the mother is experiencing personal issues like drug or alcohol abuse that make it difficult for her to raise the child. So the child goes to live with the grandparents, who act as informal caregivers.
Continuing on the example above, one or both parents might later step back in and take the child home (away) from the grandparents. The problem is that this cycle may happen several times, forcing the child to bounce from one home to the other. This is an example where the concept of a kinship guardian comes in.
A kinship guardian is an adult other than the biological parents who cares for a child and with whom the child lives. The judge could appoint the grandparents as kinship guardians if one of these situations applies:
- The child’s parent consents
- The parental rights of the child’s parent have been terminated or suspended
- The child has lived with the grandparent for at least 90 days and the parent is unable or unwilling to care for the child
- Extraordinary circumstances exist
If the grandparents are appointed as kinship guardians, the judge might still arrange visitation between the child and his or her parents. The judge can also order the parents to pay the grandparents child support in cases like these.
Contact A New Mexico Family Law Attorney About Grandparents’ Rights
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.