This post provides insight into when and how grandparents in New Mexico may file to obtain court-ordered visitation with their grandchildren after divorce, separation, the death of one parent, and other life-changing events.
How do I get court-ordered visitation with my grandchildren?
In New Mexico, biological or adoptive grandparents have the legal right to petition for reasonable visitation with their grandchildren after divorce, separation, or the death of one parent. Great-grandparents may also exercise this right. Grandparents visitation rights cases are all different.
What must I prove in court?
Judges should give significant weight to a parent’s wishes regarding who can visit their children.
To do so, the grandparents seeking visitation would have the “burden of proof” (the obligation to give enough evidence) to prove that the proposed visitation would promote the child’s health, safety, and welfare. The court must weigh up who the parents want to act on behalf of the child regarding the health of the child against evidence that:
- The grandparents’ past and present relationship with each parent
- The grandparents’ previous visit schedules and the involvement with the child
- Past offenses of physical, emotional, or sexual abuse or neglect
- If the grandparent has full-time custody of the child for any significant time
- Other information pertinent to the child’s health, safety, and well-being.
Can I request custody of my grandchild?
Judges assume custody with the biological parents serves a child’s best interests. Any non-parent—such as a grandparent — can overcome that presumption by demonstrating that the parents cannot care for the child and that awarding custody to the non-parent is in the child’s best interest.
In developing a custodial arrangement that is in the best interests of the child, the court will consider several different factors including, but not limited to:
- The emotional bonds among the child, parents, and proposed custodian
- The parents’ and proposed custodian’s capacity to meet the child’s emotional needs
- The current custody arrangement of the child
- The moral fitness and health of all concerned (i.e., mental and physical)
- The home, school, and community of the child
- The wishes of the child, if the child is over the age of 14 and sufficiently mature to express their wishes
- The distance from your home to the child’s primary residence and
- The parenting history of all parties involved.
Will my grandparents’ visitation rights be cut off if my grandchild is adopted?
Your grandparent’s visitation rights are not affected if a stepparent, relative, or godparent adopts your grandchild.
In all other adoptions, New Mexico permits the adoptee’s biological grandparents to seek visitation with their grandchild while the adoption is pending, pending the transfer of the biological parent’s rights to the adoptive parents.
These rules state that, following the adoption, all grandparent visitation rights are terminated and replaced with new rights for the adoptive grandparents.
How do I start the process?
- You must submit a “petition” (formal written request) in the court that made custody and visitation orders concerning your grandchild and inform all parties involved.
- Then, you will write your proposed schedule for court-ordered visits in your petition. Some courts in New Mexico may require additional forms to go with your petition, so check with your local court clerk or a local family law attorney.
- Once you have received court-ordered visitation, the parent(s) must give you the child’s phone number and address and notify you at least five days before any changes to scheduled visits.
- Suppose you have a visitation order but want additional time, or the other parent is interfering. In that case, you may request the court to “modify” (change) the order or enforce the order. But you can only submit a request to the court once a year.
If you have questions concerning your right to visit with your grandchild, call The Law Office of Anthony Griego LLC, a local, knowledgeable family law attorney who can assist you through each step.
