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.