New Hampshire Family Law Blog : New Hampshire Divorce Lawyer & Attorney : Crusco Law Firm : Family Law, Custody, Child Support : Manchester, New Hampshire, Massachusetts

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.

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On June 3, 2009 the New Hampshire Supreme Court released its opinion In the Matter of Kathaleen A. Dufton and Terry L. Shepard. The Court held that even where a natural parent relinquishes rights to his or her child in an adoption proceeding, she retains the right to petition a court for visitation of any grandchildren because she is the “natural” grandparent under the grandparent visitation statute. A grandparent is still subject to the requirements of the grandparent statute, and there must be an absence of a nuclear family and the grandparent must show that the proposed visitation is in the child’s best interests.

In this case, Kathaleen Dufton gave birth to her daughter, Vicki Shepard, when she was sixteen years old. She relinquished her rights to Vicki by giving her up for adoption. Vicki reunited with her biological mother when she was twenty-six year old and the two had a close relationship from that point forward. Kathaleen Dufton shared all the special occasions with her daughter including the birth of her grandchildren, vacations, baptisms and birthdays. When Vicki fell ill with cancer her mother was by her side until the end. After Vicki died, her husband, Terry Shepard, refused to allow Kathaleen to see her grandchildren. Kathaleen sought relief from the court under the grandparent visitation statute.

Parents have a constitutional right to raise their children as they see fit, including who may visit with their children. However, the legislature has crafted a grandparent visitation statute, allowing the family courts jurisdiction to order visitation over a parent’s objection when there is an absence of a nuclear family and if it is in the best interests of the child. Terry sought to have Kathaleen's petition dismissed, asserting that Kathaleen was not a “natural grandparent” of the children because she had relinquished her rights to Vicki, and therefore did not have standing to seek relief as a grandparent. However the court ruled that the plain meaning of the term “natural” was “biological” and therefore “the fact that the grandmother relinquished her parental rights to the children’s mother when the mother was an infant has no bearing, per se, upon her ability to seek visitation with the grandchildren.” Furthermore, the court found that her status as a grandparent was not derivative of her legal status as a parent to her child, and because she is related to her grandchildren, the grandparent visitation statute gives her standing to seek the visitation.
 

Crusco Law Office Law Clerk Daniel McLaughlin contributed to this post.

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