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Grandparent "Rights"

This is a misleading term. Grandparent Rights implies that grandparents indeed have some sort of legal rights as far as their grandchildren are concerned. Further, the term seems to imply that grandparents have legal standing to ask the court for visitation with their grandchildren independent of the parents’ wishes. So it is generally disappointing for grandparents to learn that this is not reality.

NMSA § 40-9-1 1978 is actually titled “Grandparent’s Visitation Privileges Act.” While the Act does give grandparents, in certain circumstances, the right to petition the court for visitation, it does not obligate the court to grant the request for visitation, even under those circumstances. As noted in the title, grandparents’ visitation is a privilege, not a right, even if one or more of the threshold statutory requirements for filing the Petition are met.

Under the Act, a grandparent may Petition the Court for visitation privileges under the following circumstances (a.k.a. “threshold requirements”):

if one the child’s parents have filed a Petition for Divorce or Legal Separation from the other parent;

if one or both of the parents are deceased;

If the grandchild resided with a grandparent for a period of at least three months and the child was less than six years of age at the beginning of the three-month period and the child was subsequently removed from the grandparent’s home by the child’s parent or any other person;

If the grandchild resided with a grandparent for a period of at least six months and the child was six years of age or older at the beginning of the six-month period and the child was subsequently removed from the grandparent’s home by the child’s parent or any other person;

If the grandchild has been adopted or adoption is sought by anyone, including adoption by a step-parent;

Even if one or more of these threshold requirements are met, grandparent visitation with grandchildren is far from automatic. There are two significant hurdles that grandparents must clear.

First, the Family Court’s primary consideration will always be the best interests of the children. By the time you get to the point of seeking relief from the court, it is probably a safe bet that your relationship and/or communication with one or both of the parents is tenuous if a relationship exists at all. In this case, it is extremely difficult to convince the judge that it is in the children’s best interest to be exposed to the tension and anxiety that results from bad blood between you and the surviving parent or both parents. The court will find that it is better for the children to deny a grandparent’s request for visitation if that means that the children will not be exposed to animosity between the parent(s) and the grandparents. Consider also that if the court were to grant visitation notwithstanding feuding between the parent(s) and grandparents, the children would likely be subject to interrogation in both camps.

This leads to the second, and arguably higher hurdle grandparents face, which is the court’s reluctance to interfere with the parents’ fundamental right to raise their children as they see fit. “Fundamental Right” is a loaded legal term meaning it is a right earning the highest degree of protection by the courts. If the parent(s) both agree that it is better for the children not to have contact with grandparents, the court may support the parents’ right to make that determination. Parents fighting against one another over custody matters is one thing, because parents are usually on equal Constitutional footing with one another, so the Court is forced to decide those matters. Grandparents, on the other hand…not so much. They will never be on equal footing with parent(s) pursuant to the Grandparent’s Visitation Privileges Act. This is important for grandparents to remember. Every Grandparent’s Visitation Privilege proceeding I have appeared in or witnessed has ultimately hinged on the quality of the relationship between the parent(s) and the grandparents. If the relationship is really bad, the Court will be less inclined to award visitation privileges to the grandparent.

As an Albuquerque Family Law attorney, I am not always able to tell clients what they want to hear. Sometimes I have to tell them what they need to hear. And grandparents need to hear that if the parent(s) do not want the children to have contact with the grandparents, the court may not force them to do so.

This is where attorney becomes counselor. When representing grandparents in this situation, my primary objective is to facilitate communication between the grandparents and parent(s). This involves identifying and addressing the parent(s) specific concerns in order to make them feel better about moving forward with visitation. Often times there are old wounds that need to heal. There is trust that needs to be rebuilt. Attempting meaningful communication is usually more constructive than resorting to the adversarial climate of a courtroom. Taking this type of issue before a judge is in fact likely to do more harm than good to the relationship. If the individuals involved are conscientious and honest about their concerns, that should be enough to begin building upon. In most cases, the conflict between parent(s) and grandparents did not develop overnight, so it is unlikely to be resolved overnight either. It is a process that takes time, and the attorneys at Cortez & Hoskovec, LLC can help guide you constructively toward that goal.

So grandparents should be aware that the Grandparent’s Visitation Privileges Act might give you a legal right to ask the court for visitation privileges, but it does not mean that the court is required to award it.

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