When divorce leads to custody battles, many grandparents may be wondering whether they‘ll be entitled to visitation with their grandchildren. And it‘s not just divorce that leads to questions of grandparents‘ rights to visitation. In certain cases, mere legal separation or paternity issues can leave a grandparent wondering whether they‘ll continue to have visitation privileges with their grandchildren.
Different states approach grandparent visitation rights in various ways, but New Mexico actually has a Grandparent Visitation Privileges Act, which is a statute that creates a grandparent‘s rights to visitation with his or her grandchildren. In other words, grandparent visitation is a statutorily created right in New Mexico.
However, it‘s important to keep in mind that grandparent‘s rights are not equal to those that parents have. Indeed, it‘s pretty difficult for a grandparent to obtain visitation privileges unless there‘s a parental agreement concerning grandparent visitation.
When Does a Grandparent Have Visitation Rights?
When a grandparent files a petition for visitation, how will a court decide whether to give the grandparent a right to see his or her grandchild? In short, the grandparent will have to convince the court that visitation is in the child‘s best interest.
So, what are some situations where the grandparents are likely to get visitation rights?
· Parents agree to grandparent visitation: As mentioned above, if the parents can come to an agreement about a grandparent‘s visitation rights, then the grandparent is likely to have the access to which the parents have agreed.
· One or both of the child‘s parents have passed away: A court might be more likely to find that a grandparent‘s presence in the life of a child is especially valuable when one of the child‘s parents has died.
· The child previously lived with the grandparent: If there‘s a clear history of a relationship between the child and the grandparent, and if the child lived with the grandparent for a period of time, a court might look at the facts of the case and decide that it‘s in the child‘s best interest to continue spending time with that grandparent.
This brings us to the issue of which factors a court will typically consider when deciding whether to grant a grandparent‘s visitation petition.
Factors for Deciding a Grandparent‘s Petition for Visitation Privileges
The Grandparent Visitation Privileges Act lays out the factors that a court will consider when deciding whether to grant a grandparent‘s visitation petition. The best interests of the child are of paramount concern to the courts. In determining the best interests of the child, the courts will look to the following considerations
· Prior interaction between the child and the grandparent
· Prior interaction between the grandparent and each of the child‘s parents
· Present/current relationship between the grandparent and each of the child‘s parents
· Time-sharing or visitation arrangements that were already in place before the grandparent filed the petition
· Likely effect of visitation with the grandparent on the child (in other words, will visitation with the grandparent have a positive effect on the child?)
· Whether the grandparent previously acted as a full-time caretaker for the child, especially for a significant period of time.
As with other situations involving contested child custody and time-sharing, the determination of grandparent visitation may require an evaluation by a child custody expert. These can be either court appointed or hired by the parties.
Are you a concerned grandparent dealing with visitation issues? Or are you currently going through a divorce and grappling with the complexities of custody and visitation arrangements? An experienced New Mexico family lawyer can discuss your case with you today.
Rules Regarding Parental Fitness in New Mexico Kinship Guardianship
Grandparents Have Limited Rights to Visitation in New Mexico
Visitation for Extended Family Only If In Best Interests of Child