2020 New Mexico Statutes
Chapter 40 - Domestic Affairs
Article 9 - Grandparent's Visitation Privileges
Section 40-9-2 - Children; visitation by grandparent; petition; mediation.
A. In rendering a judgment of dissolution of marriage, legal separation or the existence of the parent and child relationship pursuant to the provisions of the Uniform Parentage Act [New Mexico Uniform Parentage Act, 40-11A-101 to 40-11A-903 NMSA 1978], or at any time after the entry of the judgment, the district court may grant reasonable visitation privileges to a grandparent of a minor child, not in conflict with the child's education or prior established visitation or time-sharing privileges.
B. If one or both parents of a minor child are deceased, any grandparent of the minor child may petition the district court for visitation privileges with respect to the minor. The district court may order temporary visitation privileges until a final order regarding visitation privileges is issued by the court.
C. If a minor child resided with a grandparent for a period of at least three months and the child was less than six years of age at the beginning of the three-month period and the child was subsequently removed from the grandparent's home by the child's parent or any other person, the grandparent may petition the district court for visitation privileges with respect to the child, if the child's home state is New Mexico, as provided in the Child Custody Jurisdiction Act [repealed].
D. If a minor child resided with a grandparent for a period of at least six months and the child was six years of age or older at the beginning of the six-month period and the child was subsequently removed from the grandparent's home by the child's parent or any other person, the grandparent may petition the district court for visitation privileges with respect to the child, if the child's home state is New Mexico, as provided in the Child Custody Jurisdiction Act [repealed] .
E. A biological grandparent may petition the district court for visitation privileges with respect to a grandchild when the grandchild has been adopted or adoption is sought, pursuant to the provisions of the Adoption Act [Chapter 32A, Article 5 NMSA 1978], by:
(1) a stepparent;
(2) a relative of the grandchild;
(3) a person designated to care for the grandchild in the provisions of a deceased parent's will; or
(4) a person who sponsored the grandchild at a baptism or confirmation conducted by a recognized religious organization.
F. When a minor child is adopted by a stepparent and the parental rights of the natural parent terminate or are relinquished, the biological grandparents are not precluded from attempting to establish visitation privileges. When a petition filed pursuant to the provisions of the Grandparent's Visitation Privileges Act is filed during the pendency of an adoption proceeding, the petition shall be filed as part of the adoption proceedings. The provisions of the Grandparent's Visitation Privileges Act shall have no application in the event of a relinquishment or termination of parental rights in cases of other statutory adoption proceedings.
G. When considering a grandparent's petition for visitation privileges with a child, the district court shall assess:
(1) any factors relevant to the best interests of the child;
(2) the prior interaction between the grandparent and the child;
(3) the prior interaction between the grandparent and each parent of the child;
(4) the present relationship between the grandparent and each parent of the child;
(5) time-sharing or visitation arrangements that were in place prior to filing of the petition;
(6) the effect the visitation with the grandparent will have on the child;
(7) if the grandparent has any prior convictions for physical, emotional or sexual abuse or neglect; and
(8) if the grandparent has previously been a full-time caretaker for the child for a significant period.
H. The district court may order mediation and evaluation in any matter when a grandparent's visitation privileges with respect to a minor child are at issue. When a judicial district has established a domestic relations mediation program pursuant to the provisions of the Domestic Relations Mediation Act [Chapter 40, Article 12 NMSA 1978], the mediation shall conform with the provisions of that act. Upon motion and hearing, the district court shall act promptly on the recommendations set forth in a mediation report and consider assessment of mediation and evaluation to the parties. The district court may order temporary visitation privileges until a final order regarding visitation privileges is issued by the court.
I. When the district court decides that visitation is not in the best interest of the child, the court may issue an order requiring other reasonable contact between the grandparent and the child, including regular communication by telephone, mail or any other reasonable means.
J. The provisions of the Child Custody Jurisdiction Act and Section 30-4-4 NMSA 1978, regarding custodial interference, are applicable to the provisions of the Grandparent's Visitation Privileges Act.
History: 1978 Comp., § 40-9-2, enacted by Laws 1993, ch. 93, § 3; 1999, ch. 73, § 1.
ANNOTATIONSRepeals and reenactments. — Laws 1993, ch. 93, § 3 repealed former 40-9-2 NMSA 1978, as enacted by Laws 1979, ch. 13, § 2, and enacted a new section, effective July 1, 1993.
Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Laws 2009, ch. 215, § 19 repealed the Uniform Parentage Act, 40-11-1 to 40-11-23 NMSA 1978, effective January 1, 2010. For comparable provisions, see the New Mexico Uniform Parentage Act, 40-11A-101 to 40-11A-903 NMSA 1978.
Laws 2001, ch. 114, § 404 repealed the Child Custody Jurisdiction Act, effective July 1, 2001. For comparable provisions, see the Uniform Child-Custody Jurisdiction and Enforcement Act, 40-10A-101 to 40-10A-403 NMSA 1978.
The 1999 amendment, effective July 1, 1999, in Subsection G added "any factors relevant to" in Paragraph (1), added Paragraphs (6) through (8), and made minor stylistic changes.
Subsections C and G of 40-9-2 NMSA 1978 are separate, distinct provisions that require separate proof. French-Hesch v. French-Williams, 2010-NMCA-008, 147 N.M. 620, 227 P.3d 110.
Determination of standing. — Where the child lived with the grandparent from birth for a period of two years, and the trial court ruled that the grandparent did not have standing to petition for visitation with the child based on the trial court's findings that at the time the child was born, the child's parent was coerced by the grandparent to live with the child in the grandparent's home, that a domestic disturbance between the child's parent and the grandparent led the child's parent to leave the grandparent's home without the child, that the evidence was conflicting as to when the child was returned to the child's parent, and that there was insufficient evidence to find that the child lived with the grandparent for three months from the date the child's parent left the grandparent's home, the trial court erred by considering factors in addition to whether the child resided for at least three months in the grandparent's home before age six in determining whether the grandparent had standing. French-Hesch v. French-Williams, 2010-NMCA-008, 147 N.M. 620, 227 P.3d 110.
Constitutionality. — This act, authorizing the trial court to permit grandparent child visitation, withstands state and federal constitutional challenges if the allowance of visitation is shown to be in the best interest of the child. Ridenour v. Ridenour, 1995-NMCA-072, 120 N.M. 352, 901 P.2d 770, cert. denied, 120 N.M. 68, 898 P.2d 120.
Visitation not a substantial interference. — Even though the state's enforcement of the Grandparent's Visitation Privileges Act impacts a parent's right to raise a child, the intrusion is not a substantial interference and is thus an appropriate mechanism by which the state may balance the parties' competing interests. Ridenour v. Ridenour, 1995-NMCA-072, 120 N.M. 352, 901 P.2d 770, cert. denied, 120 N.M. 68, 898 P.2d 120.
Constitutionality. — The Grandparent's Visitation Privileges Act is not unconstitutional on its face. Deem v. Lobato, 2004-NMCA-102, 136 N.M. 266, 96 P.3d 1186, cert. denied, 2004-NMCERT-008, 136 N.M. 491, 100 P.3d 197.
Wishes of parents. — Troxell v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), requires courts to give special consideration to the wishes of the parents in a grandparents' visitation case, but it does not give the parents an ultimate veto; the court may balance the interests of the parents, grandparents, and children. Williams v. Williams, 2002-NMCA-074, 132 N.M. 445, 50 P.3d 194.
Findings required. — Troxell v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), does not require a formal finding of parental unfitness before a court can order grandparent visitation; the court must only find the presence of "special factors" before it can order grandparent visitation over the objections of a fit parent. Williams v. Williams, 2002-NMCA-074, 132 N.M. 445, 50 P.3d 194.
"Special factors" that a court may consider before awarding grandparent visitation over the objections of a fit parent include the court's concerns, founded in the record, regarding the ability of the parents to carry out their responsibilities in an appropriate manner. Williams v. Williams, 2002-NMCA-074, 132 N.M. 445, 50 P.3d 194.
Visitation allowed even where parental rights relinquished. — The legislature intended that the trial court, upon a showing that grandparent visitation was in the best interests of the child, could authorize grandparent visitation even though the grandparent's son had relinquished his parental rights. Lucero v. Hart, 1995-NMCA-121, 120 N.M. 794, 907 P.2d 198.
Grandparent's burden. — In seeking application of the Grandparent's Visitation Privileges Act, the grandparents have the burden to show that visitation is appropriate. Ridenour v. Ridenour, 1995-NMCA-072, 120 N.M. 352, 901 P.2d 770, cert. denied, 120 N.M. 68, 898 P.2d 120.
Visitation will be denied where grandparents failed to meet their burden under Subsection G of this section to show factors that could support grandparent visitation under Subsection A of this section. Gutierrez v. Connick, 2004-NMCA-017, 135 N.M. 272, 87 P.3d 552.
When visitation challenged, guardian may be appointed. — When a petition for grandparent visitation is challenged by the child's parents, the trial court should consider whether it would be beneficial to appoint a guardian ad litem to represent the child in the face of conflicting family interests. Lucero v. Hart, 1995-NMCA-121, 120 N.M. 794, 907 P.2d 198.
Non-statutory factors relevant to request. — In addition to the statutory factors enumerated in Subsection G, other relevant factors relating to a request for grandparent visitation which the trial court may consider include: (1) the love, affection and other emotional ties which may exist between the grandparent and child; (2) the nature and quality of the grandparent-child relationship and the length of time that it has existed; (3) whether visitation will promote or disrupt the child's development; (4) the physical, emotional, mental and social needs of the child; (5) the wishes and opinions of the parents; and (6) the willingness and ability of the grandparent to facilitate and encourage a close relationship among the parent and child. Lucero v. Hart, 1995-NMCA-121, 120 N.M. 794, 907 P.2d 198.
No grandparent visitation right existed at common law. Gutierrez v. Connick, 2004-NMCA-017, 135 N.M. 272, 87 P.3d 552.
Grandparent visitation privileges are conferred by statute. — Grandparent visitation privileges are not derivative of the rights of the parents but rather exist independently under the Grandparent's Visitation Privileges Act. Deem v. Lobato, 2004-NMCA-102, 136 N.M. 266, 96 P.3d 1186, cert. denied, 2004-NMCERT-008, 136 N.M. 491, 100 P.3d 197.
Grandparent visitation privileges are circumscribed by constitutional limitations, in that parents have a fundamental liberty right to make decisions concerning the care, custody, and control of their children, a right that is protected under the due process clause of the fourteenth amendment. Gutierrez v. Connick, 2004-NMCA-017, 135 N.M. 272, 87 P.3d 552.
Putative grandparent has standing as interested party under 40-11-7A NMSA 1978 to bring an action to establish a parent-child relationship for the purpose of establishing the grandparent as either the maternal or paternal grandparent of a child in order to obtain visitation privileges under this section. Gutierrez v. Connick, 2004-NMCA-017, 135 N.M. 272, 87 P.3d 552.
Am. Jur. 2d, A.L.R. and C.J.S. references. — Grandparents' visitation rights, 90 A.L.R.3d 222.
Grandparents' visitation rights where child's parents are deceased, or where status of parents is unspecified, 69 A.L.R.5th 1.
Grandparent's visitation rights where child's parents are living, 71 A.L.R.5th 99.
