Do Grandparents Have Visitation Rights in New Mexico?

This article explains when and how grandparents in New Mexico can request court-ordered visitation with their grandchildren after divorce, separation, one parent's death, or other life-altering changes.

When can I ask for court-ordered visitation with my grandchildren?

In New Mexico, biological or adoptive grandparents have a legal right to ask for reasonable visitation with their grandchildren after divorce, separation, or one parent's death. Great-grandparents may also exercise this right.

What must I prove in court?

Judges must give great weight to parents' preferences regarding who gets to visit their children. To overcome this, the grandparent asking for visitation has the "burden of proof" (the duty to provide sufficient evidence) to show that the proposed visits are in the child's best interests, considering the child's health, safety, and welfare. The court must balance the parents' wishes and opinions with evidence of:

• the grandparent's past and current relationship with each parent
• the grandparent's prior visitation arrangements and interactions with the child
• prior convictions of physical, emotional, or sexual abuse or neglect
• whether the grandparent has previously been the child's full-time caretaker for any significant period of time, and
• other evidence relevant to the child's health, safety, and general welfare.

Can I request custody of my grandchild?

Judges presume that custody with the natural parents is in a child's best interests. Any non-parent—including a grandparent—can overcome this presumption by proving the parents are unable to care for the child, and that the child's best interests would be served by awarding custody to the non-parent.

The court will consider a range of factors to determine a custodial arrangement that serves the child's best interests, including but not limited to:

• the emotional ties between everyone involved, including the child, parents, and proposed custodian
• the parents' and proposed custodian's ability to meet the child's emotional needs
• the child's existing living arrangement
• the moral fitness and health (mental and physical) of everyone involved
• the child's home, school, and community
• the child's preferences, if the child is over 14 years old and mature enough to express his or her wishes
• the distance between your home and the child's primary residence, and
• the parenting track record of everyone involved.

Are my grandparent visitation rights terminated if my grandchild is adopted?

If a stepparent, relative, or godparent adopts your grandchild, your grandparent visitation rights are not affected by the adoption. In all other adoptions, New Mexico allows biological grandparents to pursue visitation with their grandchild while the adoption is pending, until the biological parents' rights are terminated and transferred to the adoptive parents. After the adoption, all grandparent visitation rights are terminated and transferred to the adoptive grandparents.

How do I start the process?

You must file a "petition," (formal written request) in the court making custody and visitation orders regarding your grandchild and notify everyone involved. In your petition, you will describe your proposed schedule for court-ordered visits. Some New Mexico courts require other forms to be filed with your petition, so you should check with your local court clerk or a local family law attorney.

Once you are granted court-ordered visitation, the parent(s) must provide you with the child's phone number and address, and notify you at least five days in advance of any changes to scheduled visits.

If you already have a visitation order, but you want more time or the child's parent is interfering, you can ask the court to "modify" (change) it or enforce the order. However, you may only file a request with the court once a year.

If you have questions about your right to spend time with your grandchild, you should speak to a local, experienced family law attorney, who can help you navigate this process.