Do grandparents have visitation rights for their grandchildren?

In New Mexico, biological grandparents and adoptive grandparents (i.e. the parents of adoptive parents) have a legal right to request visitation and have visitation schedules entered as part of the divorce decree. Grandparents who wish to spend more time with their grandchildren can file a petition to modify the divorce decree or have the existing decree enforced.

Worth noting is that New Mexico family law courts make all decisions in the best interests of the children. Grandparents wishing to have their visitation enforced as part of a divorce decree must first be prepared to demonstrate why their visitation can be enriching to the child, that they are appropriate caregivers for the child, and that they are already an important part of the child’s life. These demonstrations are especially important in situations where one parent might object to having grandparents’ visitation included as part of the divorce decree.

Concerned parents and grandparents can work with an experienced New Mexico family law attorney to determine a path to accomplishing their goals of spending quality time with the people they love.

Before considering the material below regarding grandparent visitation, it is important to caution that the biological parents are considered the primary decision-makers.  Both the United States Supreme Court and the New Mexico courts have ruled that parents have a constitutional right to raise their own children.  That right can be modified by the courts based on what is in the best interest of the children. However, courts will first inquire whether the parents’ choice to determine or limit visitation with grandparents was reasonable.

At the end of the day, grandparents should first attempt to negotiate time with their grandchildren from the children’s parents.  Only if that does not work, should a court option be pursued.

New Mexico Recognizes the Right to Visitation for Biological Grandparents and Adoptive Grandparents

After a divorce, many states only provide for court-ordered visitation for the parents of the child and not any other relatives, extended family, or long-time acquaintances. New Mexico, however, recognizes the important role grandparents can play in the lives of their grandchildren.

Although a specific statute refers to grandparents’ visitation, courts have also fashioned some visitation for people that have been important to a child’s life, even though there is no statute.  On rare occasions, the courts have ordered that former-step parents, for instance, be able to maintain a relationship with a child after the marriage ends.  There is no statute that specifically allows for this, but it is recognized under the courts’ general powers in determining what is in a child’s best interest.

Importantly, this grandparent right only pertains to the biological grandparents of the child or the grandparents of a legally adopted child. In situations where parents divorce and a step-parent (or another guardian) legally adopts the child, the biological grandparents will lose their legal right to visitation once the adoption process has fully completed.

Visitation With Grandparents Is Considered As-Appropriate, Case-by-Case

One important thing to note is that the courts will assume that there is no need to order visitation for a grandparent unless there are specific barriers in place that would prevent the visitation. Otherwise, the grandparent is free to have visitation with the grandchild according to each person’s schedule and availability.

The question of visitation usually only comes up in the following instances:

• During the process when children’s parents are getting legally separated or divorced
• After one or both of the children’s parents have died
• After a judgment has been made regarding child custody
• After the child is legally adopted by someone after one or both parents’ deaths
• If a parent refuses visitation by the grandparent(s) for any reason, but the child spent at least 3 months (if the child is <6) or 6 months (if the child is 6 or older) in the full-time care of the grandparent

Grandparents may also decide to petition for visitation after a divorce and after a parent discourages or forbids visitation.

When considering whether to grant the petition for visitation, the grandparents have the burden of proof to demonstrate that their visitation will be important for the health, growth, and well-being of the child.

The court will look at factors such as:

• The prior relationship and emotional ties between the grandparent and grandchildren
• The prior relationship between the grandparent and each of the child’s parents
• Whether the grandparent provided full-time care for a significant amount of time
• Any factors to the child’s general welfare, health, or safety, including the burden caused by court-ordered visitation to a grandparent
• The criminal history of the grandparent and any convictions of emotional, physical, or sexual abuse or neglect
• Any other relevant factors that could impact the child’s health, safety, or well-being

Petitioning to Receive Court-Ordered Visitation as a Grandparent

The best time to incorporate a court order for grandparents’ visitation is while the divorce (or separation) is proceeding. Grandparents’ visitation can be included in the visitation/timeshare arrangement that is included as part of the divorce decree. Their inclusion is especially important if the grandparents will be providing full-time care regularly throughout the week or month as part of the child’s upbringing.

A petition for court-ordered grandparents’ visitation can be requested at most once a year after custody has been decided. The grandparents can also file a petition to call upon the courts to enforce the existing visitation agreement.

Many grandparents decline to exercise their right to visitation until several months after the divorce has been finalized. Typically, what they experience during this time is a dramatic and unexpected drop in visitation. The parent (typically the one who is not the grandparents’ own child) may be discouraging visitation, or they may decide that visitation does not fit into their new lifestyle. In any case, the grandparent can have the divorce decree modified (or enforced) so that the grandparents have specific rights to visitation that are included as part of the timeshare schedule.

One important scenario to prepare for is that once a child turns 14, they are usually considered mature enough to voice their own preference for whether or not they wish to spend time regularly with their grandparent. If a child of age 14 or older does wish to see their grandparents, that can help the grandparents’ petition find success. However, if the child prefers not to see their grandparents — particularly if they are capable of voicing logical reasons for feeling that way — then the grandparents may be denied visitation.

Fight for Your Right to See Your Grandchildren With a New Mexico Family Law Attorney

Grandparents’ rights to visitation are preserved in New Mexico but far from guaranteed. Anyone who feels that they are an asset in the life of their grandchild should speak up and have their voice heard by the family law court. They can prepare to do so by working with experienced family law attorneys who understand the proving’s needed to convince the court that grandparents’ visitation will enrich the lives of their grandchildren.

New Mexico Financial & Family Law can provide you and your family with assistance before, during, or after a divorce. If you have questions related to grandparents’ visitation or want assistance asserting your legal right to see a grandchild, do not hesitate to seek our help. Call (505) 503-1637 or contact us online to schedule a no-risk, no-obligation case review with a family lawyer near you today.