November 2021 Newsletter

The “Grandparents Issue” - Families are complicated. Sometimes grandparents need to step in when it comes to children. This issue opens with 4 Reasons Grandparents Matter in A Child's Life, followed by Grandparent Visitation in New Mexico, and concluding with Grandparents Raising Grandchildren in New Mexico.

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4 Reasons Grandparents Matter in a Child's Life

By Lindsay Miraglia, posted on, Jan 15, 2021

What is it about the relationship between grandparent and grandchild that causes our child's wellbeing to improve? Here's the answer.

Grandparents play an important role in the lives of our children. It's important for children to not just bond with their parents but also with their grandparents. It turns out that grandparents play a vital role in our children's lives, and they contribute greatly to our children's wellbeing. Research even shows that grandparents are increasing their role in our children's lives as life expectancy and dual-worker households increase.

In fact, a study conducted by Professor Ann Buchanan from the Department of Social Policy and Intervention shows that of the over 1,500 children in the study, those with more grandparent involvement resulted in less behavioral and emotional problems.

So, why is this? What is it about the relationship between grandparent and grandchild that causes our child's wellbeing to improve? Well, here are 4 reasons why that is.

4 - Grandparents Embrace A Positive Role

Grandparents are another source of unconditional love, except they have the added benefit of patience. Because they are not around their grandchildren as much as parents are, they have more time to focus on giving their grandchildren attention with a sense of patience that most parents run out of after yelling at their children for the tenth time.

Grandparents also bend the rules for their grandchildren. They might let their grandchildren go to bed later, or give them extra treats, or even spoil them a little extra.

The amount of influence a grandparent has on a child is immense. According to Wilmington Parent, studies showed that "as many as 9 out of 10 adult grandchildren [felt] that their grandparents influenced their beliefs and values."

This comes out of the unwavering support and emotional intimacy that exists in the relationship. But more than that, the relationship between a grandparent and grandchild has the ability to shape what a child considers a healthy relationship for the rest of their lives.

3 - Grandparents Provide A Sense Of Security

Grandparents aren't usually subject to disciplining their grandchildren. That job usually remains with you, the parent. Of course, this puts them in a role in which they can listen to their grandchildren without judgment or criticism. Instead, they are afforded the opportunity to calm their grandchildren by giving them a shoulder to cry on or possible solutions.

More than that, children typically feel less stress when they are around their grandparents because, according to a study by the University of Hertfordshire, "Time spent with grandparents [is] a calm time, in which few demands [are] made of them." On the other hand, at home, children are expected to do their chores or homework. With their grandparents, they are able to relax without those added responsibilities.

2 - Grandparents Reduce Stress All Around

As mentioned, children are less stressed when they are spending time with their grandparents. But this relationship does more than just reduce the stress during that time. Grandparents often love their role, and are generally less stressed and less likely to develop symptoms of depression because of it. It's like when you find a job you love; despite the hard work, the stress won't be as noticeable if you enjoy the work.

Grandparents aren't the only ones that are less likely to have symptoms of depression. Children benefit from this as well when they share a close relationship with their grandparents.

Parents may also benefit from a reduction in stress if grandparents are able to take care of their children while they're working in place of putting their children in daycare. In addition to the lack of cost that this option affords, it also gives parents comfort knowing that their children are in safe and capable hands. After all, they were raised by the same people taking care of their children.

1 - Grandparents Share Skills & Lifelong Knowledge

Grandparents have a lifetime of knowledge and experience that they are more than excited to share with their grandchildren. While children may not often listen to their parents or other adults, there is something different about their bond with their grandparents that leaves them enthralled by the stories they're told. And some of these stories may include the family's culture and history, which allows children to know where they came from.

It's not just knowledge that grandparents love to share. They also love sharing their skills, such as baking cookies or doing jigsaw puzzle. Again, grandparents have a level of patience that parents often strive for but never attain, and this allows them to teach children with more understanding. Most of the time, children are taught new skills by their grandparents simply because children decide to join in on whatever their grandparents are doing rather than being pressured to do it. This makes children more willing to learn.

Essentially, children often rely on their grandparents to help them grow up healthy and happy. So it's important to nurture this relationship with your own child.

Grandparent Visitation in New Mexico

By Mary Ann R. Burmester, Esquire

New Mexico has a law known as the “Grandparents Visitation Privileges Act.” The word “privileges” in the title is key. Grandparents do not have an automatic right to see their grandchildren over the objection of one or both parents. That is because the law presumes parents have the right to raise their children as they see fit (with a few exceptions), including the right to decide with whom and how the children interact with other people, such as extended family members and grandparents.

Under the statute, a “grandparent” means the biological grandparent or great-grandparent, or a person who becomes a grandparent or great-grandparent due to the adoption of the child by a member of that person’s family. Note that it does not include step-grandparents or step-great-grandparents.


In order to be able to file a Petition for Grandparent Visitation, the grandparent must have “standing” to bring the court case. There only five ways to have “standing”:

  • There is a past or pending divorce, legal separation or paternity case involving the specific child.
  • One or both parents of the child are deceased.
  • The child lived with the grandparent for at least three months if the child was less than six years old at the beginning of the three-month period and that child was later removed from the grandparent’s home by the parent or other person.
  • The child lived with the grandparent for at least six months if the child was more than six years old at the beginning of the six-month period and that child was later removed from the grandparent’s home by the parent or other person.
  • The child is being put up for adoption in certain situations.

If you do not fit the criteria of at least one of the categories, then you lack standing and cannot even get your foot in the courthouse door to ask a judge to force visitation with the grandchild over one or both parents’ objection.

How a Judge Decides Grandparent's Rights in NM

Assuming you meet one of the five categories described above for “standing”, you will have to prove several other factors before a judge awards visitation with a grandchild.

By statute (NMSA §40-9-2), the judge must assess:

  • Any factors relevant to the best interests of the child
  • Prior interaction between the grandparent and child
  • Prior interaction between the grandparent and each parent of the child
  • Present relationship between the grandparent and each parent of the child
  • Visitation arrangements that were in place before filing the grandparent visitation petition
  • Effect visitation with the grandparent will have on the child
  • Any prior convictions of the grandparent for physical, emotional or sexual abuse or neglect of a child
  • Whether the grandparent has previously been a full-time caretaker of the child for a significant period of time

In addition to these factors, case law instructs the judge to also consider:

  • The love, affection and other emotional ties which may exist between the grandparent and child
  • The nature and quality of the grandparent-child relationship and the length of time it has existed
  • Whether visitation will promote or disrupt the child’s development
  • The physical, emotional, mental and social needs of the child
  • The wishes and opinions of the parents
  • The willingness and ability of the grandparent to help and encourage a close relationship between the parent and child

Under the 14th amendment of our national Constitution, parents have a fundamental liberty right to make decisions about the care, custody, and control of their children. That means it can be very difficult to get the judge to order visitation by a grandparent over the objection of one or both parents.

Grandparents Raising Grandchildren in New Mexico

By Mary Ann R. Burmester, Esquire

A grandparent stepping in and actually raising grandchildren, as opposed to babysitting or visiting them, is a growing trend across the country, including in New Mexico. The most common scenario seen is a mother with one or more children (usually with absent fathers) who suffers from drug or alcohol abuse or a significant mental health disorder. The mother drops the kids off with the grandparents, disappears for weeks or months, and then returns one day wanting to take the children back with her. The pattern continues to repeat itself, disrupting the children and emotionally devastating the grandparents who become worried about the grandkids’ safety and well-being.

Kinship Guardianship

New Mexico passed the “Kinship Guardianship Act” to help stop the yo-yo effect of children moving in and out of their grandparent’s home at the whim of a parent who cannot consistently perform the duties of a responsible, safe parent.


By statute (NMSA §40-10B-5) only certain persons have the right (“standing”) to file a petition and ask the Court to appoint him or her as a Kinship Guardian:

  • A “kinship caregiver” is a non-parent adult (relative, godparent, member of the child’s tribe or clan, or adult with whom the child has a significant bond) and the child lives with that adult who cares for the child; or
  • A caregiver over age 21 who doesn’t meet the definition of “kinship” but who has been nominated to be guardian of the child by the child, if the child is age 14 or older; or
  • A caregiver designated in writing by a parent to be the guardian.

Factors the Judge Considers

A Kinship Guardian can only be appointed if the judge finds:

  • The child’s parent is living and has consented in writing; or
  • The child’s parent is living but all parental rights to that child have been terminated or suspended by court order; or
  • The child has lived with the person seeking appointment as guardian for at least 90 days before the petition is filed and the parent having legal custody of the child is currently unwilling or unable to provide adequate care and supervision of the child; or
  • There are "extraordinary circumstances" (this is a very high burden of proof)

If the judge does appoint a Kinship Guardian, then the judge can also require a parent to pay child support to the guardian. The judge can also set up a visitation schedule between the child and parent if such visits are in the child’s best interest.

Guardian ad Litem

The judge has the power to appoint a Guardian ad Litem (lawyer for the child) if a parent participates in the court case and opposes the appointment of the Kinship Guardian. Anyone – including the child who has reached age 14 – may ask the judge to end the Kinship Guardianship. The person making this request must have a transition plan to show how the child will be reintegrated into the parent’s home or that of a new guardian.