Exploring a Grandparent’s Legal Right to Access After Divorce

When a couple gets a divorce, they will work toward achieving the best outcome for themselves and their children. They will need to separate joint assets and finances, protect assets that are solely owned, update their will and any power of attorney documents that exist, create a custody and co-parenting plan, and potentially find a new place to live – all while maintaining a stable, secure and loving environment for their children.

It is easy to see how, in the face of this angst and paperwork, the needs and desires of grandparents can be forgotten. However, New Mexico is a state that recognizes the important role that grandparents play in a child’s life and family law in Albuquerque (https://kufferlaw.com/albuquerque/divorce-lawyer/) provides some legal remedies to satisfy a grandparent’s right to access in certain cases. Unfortunately for many grandparents, it is not an established right in most cases and the law recognizes the child’s parents’ role as superseding that of a grandparent’s role.

Parents’ rights to withhold access

The court will consider the parents’ wishes and the reasons they have elected to withhold visitation from the grandparents when making their decision. New Mexico is a state that firmly believes in a parent’s right to make choices about their children’s lives and will only interfere with an official custody plan in cases where the grandparents can demonstrate that visitation with them is in the best interests of the children and complies with Section 40-9-2 NMSA.

Petitioning for access

Not all grandparents will be able to qualify for grandparent visitation. Instead, grandparents will need to satisfy the factors set forth in Section 40-9-2 NMSA. In particular, only in the following circumstances can grandparents obtain visitation privileges:

  1. If one or both parents are deceased;
  2. If the child(ren) resided with the grandparent(s) for a period of time when the child is of certain age and the child is subsequently removed from the grandparents’ home;
  3. In an adoption by a stepparent, relative of the child, person appointed to care for the child by a parent’s will or a person who sponsored the child at a baptism or confirmation, grandparents may petition the court for visitation within the adoption proceedings;
  4. In an adoption where the biological parent’s rights to the child are terminated, grandparents may petition the court for visitation within the adoption proceedings

Significantly, grandparent visitation cannot conflict with the child’s education or existing timesharing/visitation privileges established for the child’s parents. Additionally, a grandparent must show that visitation is in the best interests of the child(ren). In order to evaluate the child’s best interests, the court looks at a variety of factors. These factors include the nature of the relationship that the grandparent has with the children, the emotional and physical well-being of the children, the effect grandparent visitation will have on the children, whether the grandparent has acted as full-time caretaker of the child in the past, and the reasons one or both parents are objecting to their request for visitation. When children are of a sufficient age and maturity level, their desire to visit with their grandparents may also be taken into account by the court. Additionally, grandparents should be prepared to present evidence of the positive relationship they have with the child, such as emotional or financial support, involvement in the child’s life such as school and extracurricular activities, and any other support that the child may be missing that the grandparents can provide.

Steps to follow to request access

The first and most crucial step for any grandparent who wants to visit with their grandchildren following their parents’ divorce is to speak to the parents informally and ask that they be allowed to remain a part of the children’s lives. They should emphasize their desire to love and care for the child just as they did prior to the divorce, supporting their emotional needs and helping the parents navigate their new co-parenting position in an amicable manner.

If either or both parents refuse to grant access to the grandparents, grandparents should speak with an attorney to determine whether they might qualify for obtaining grandparent visitation. Mediation may be ordered to help the family reach a position of understanding and trust. Mediation can enable the parties to identify a solution that is in the best interests of the children and that adequately addresses any concern either parent has about the visitation that is requested.

The attorney’s role will be to provide the grandparent with the support and representation necessary to demonstrate their ability to provide a haven of love and support in their grandchildren’s lives following their parents’ divorce. They will take all necessary measures to guide their client to reach an outcome that protects their relationship with their child, their child’s former spouse and their grandchildren.

In conclusion

At the Law Office of Dorene A. Kuffer, we are well versed in all aspects of family law and can help you navigate the complex legal process of restoring visitation with your grandchildren with a focus on achieving the best possible outcome for you and your family.