SERVICES

Third Party & Grandparents’ Rights

Requesting the right to child visitation or guardianship.

Grandparents usually investigate their rights either to obtain visitation or to become a legal caregiver. Others who have had a close relationship with a child, including former step parents or close relatives, may also seek to understand their rights to visitation or guardianship.

Visitation

It can be devastating to lose contact with a child due to a dispute with the parents or a parent’s remarriage or relocation. The court can grant visitation to grandparents in a divorce proceeding between the parents as long as the visitation is not in conflict with the child’s education or parental visitation.

When considering whether grandparents should be granted court‐ordered visitation, the court considers, among other factors, the best interests of the child, the interaction between the grandparent and child, the relationship between the grandparent and each parent, any visitation arrangements in place prior to the grandparent’s request, and whether the grandparent has been a full‐time caretaker for the child for a significant period of time ( generally six months or more). The New Mexico courts grant extensive leeway to a child’s parents as to determining who the child spends time with. Obtaining visitation rights from an uncooperative or unwilling parent is very difficult. Some special circumstances, such as having lived with the child and/or having been significantly involved in childrearing may increase the possibility.

Guardianship

New Mexico’s Kinship Guardianship Act indefinitely but temporarily transfers all parental rights and obligations to a child to the caregiver. The Act allows a caregiver to obtain legal custody of a child by suspending, but not terminating, parental rights. Much easier to obtain and faster than an adoption, a Kinship Guardianship can be requested for reasons including an abusive relationship, drug or alcohol abuse, abandonment, neglect or even the extreme youth of a parent. It can be useful to both child and parent in that it lets a child be cared for (without reliance on the foster care system) while the parent seeks help, but permits the parent to come back into the child’s life when the parent is ready and able. It is an important distinction to note that with a Kinship Guardianship, a parent does not have to be proven, and is not labeled, “unfit”.

The basis for a Kinship Guardianship petition may be established

If a child has resided with you for a minimum of 90 days with the care or supervision of a parent
OR
Both parents agree to the guardianship
AND
You have a significant bond with the child (a blood relationship is not a prerequisite)

Walther Family Law attorneys have been very active in child welfare in New Mexico, both through child advocacy work and by vocally advocating for (and against, when appropriate) laws in order to protect New Mexico’s children. Our attorneys prefer, and work towards reaching, agreements rather than resorting to litigation and we succeed in brokering agreements in a great number of cases.

If you require legal assistance in any of these areas and would like to schedule an appointment, please phone us at 505 889 8240 (Albuquerque) or 505 984 0097 (Santa Fe) or online through our contact form.