Most people have heard of visitation in the context of a divorce or parenting matter for a parent. However, many New Hampshire residents are unaware that New Hampshire grandparents have certain rights to visit with their grandchildren, sometimes even over the objection of the parents. Although parents have constitutional rights and responsibilities regarding how they raise their own children, including where they live, what school they go to, and who they allow to see their children, grandparents are not without their own set of rights pursuant to RSA 461-A:13.
When a conflict arises where a parent or parents of a child decide that their parents are no longer allowed to see their grandchildren, grandparents may petition for a court order provided they meet the requirements of the statute. In order to petition for these rights, there must be an absence of a nuclear family, whether by divorce, death, termination of parental rights or other reason. In other words, if a mother and father who are together decide that the grandparent may not see their grandchild, the grandparent will not have standing to seek the visitation under the statute.
If an absence of the nuclear family exists, the Court will examine the factors enumerated in the statute to determine whether the visitation should be granted. The factors include:
- whether visitation with the grandparent would be in the best interest of the child,
- whether it would interfere with any parent-child relationship, or with that parent’s authority over the child,
- the nature of the relationship between the grandparent and the child, including the frequency of contact between them, whether they have resided together in the past, and whether there would be an emotional blow to the child by visitation or a lack thereof, and
- the impact of the relationship between the parents and grandparents on the child, including whether any friction resulting from visitation would have a negative impact on the child.
In addition to examining the above factors, the court will often also appoint a Guardian Ad Litem and listen to her recommendations regarding the proposed grandparent visitation carefully. If the child is emotionally mature, the court may consider the child’s opinion about the matter as well.
While New Hampshire grandparents may seek visitation under New Hampshire law, not all states protect the grandparent-grandchild relationship. Additionally, the United States Supreme Court, in Troxel v. Granville, overturned a Washington statute allowing grandparents the right to petition the courts for visitation of children over parental objections. The court stated that parents have a constitutional right to rear their children as they see fit. The court also affirmed that there is “a presumption that fit parents act in the best interests of their children.”
In spite of the Troxel ruling, New Hampshire courts have continued to grant grandparents rights because the statute contains safeguards for a parents rights over their children. Even if grandparents are in some way infringing on parental rights, what is most important is the best interest of the children. Sometimes, those interests are best served by maintaining a healthy grandparent-grandchild relationship, even over the objection of the parents.
Crusco Law Office Law Clerk Daniel McLaughlin contributed to this post.