As a family law attorney, this is probably one of the most frequent questions I get. In the normal course of events when parents break up, a GP’s right to see the grandkids is derivative of that of the GP’s child; i.e., whatever time mom or dad have with the kids, is the period during which GP can also spend time with the kids. But unfortunately, when parents are separating, too often their anger at each other spills over onto everyone else in the family circle, including children and in-laws. Some parents will then act on this anger by cutting off visits between the kids and the GPs. Everyone loses when this is the case.
So do GPs have a right to have visitation with the kiddos, over the objection of a parent?
The short answer is no. There is no such right under New Mexico law. However, there is a privilege, meaning our state considers time-sharing between kids and their GPs important and deserving of some legal protection, but only under certain limited conditions, and only if it is “reasonable.”
So if you are being prohibited from seeing your grandkids, here are some questions to ask before you decide to file a lawsuit.
First, are the parents of the children currently involved in a divorce or parentage case? If so, you can file your GP visitation petition using the same case number as is being used in their divorce or parentage case. If not, then you can file a new case asking for visitation only under three circumstances: 1. if one or both parents of the minor child are deceased; 2. if the grandchild lived with the GP; or 3. if the child has been adopted by a stepparent.
Second, what kind of relationship have you had with the child in the past? Judges will look closely at the interactions within this family. I think it’s safe to say that you are more likely to be granted GP visitation if you can show that your time with the child is in the child’s best interest; and that you are willing and able to put aside any negative feelings you may have for the parents and speak kindly of them to the child.
I remember my grandparents as the most important people in my life, so I feel strongly about encouraging children to spend time with their GPs. But I also understand the high level of emotion that exists when parents are breaking up. My advice to GPs who are currently not allowed to be in their grandchildren’s lives is to keep up whatever level of contact you can, without being intrusive or obnoxious, and without irritating the parent. Sure, you might be rebuffed, but at least you’re trying to keep the lines of communication open.