We often hear people contacting us to discuss grandparents rights. While we understand what they are asking the requests are really wrong. This is because in a strict sense, grandparents do not have “rights” to their grandchildren. Instead, they have “privileges” pertaining to their grandchildren. The reason behind this goes back to some old case law where New Mexico recognized what is called the Parental Right Doctrine. This doctrine says that parents have a superior claim to custody over their children over all other people unless the parents are proven to be unfit or unable to care for their children.
There is a strong public policy in favor of keeping children with biological parents. In addition to the public policy arguments there are also cultural, religious and financial reasons the law presumes that the best interests of children are served by being with their biological parents. To that end, this parental rights doctrine impacts on grandparents and their desire to be with their grandchildren.
New Mexico does have a grandparents visitation privileges act where if certain conditions are met then the grandparent can obtain time sharing with the grandchildren. These visits, however, are not rights but privileges. They are enforceable by way of a court order but succumb to a fit parent’s desires. Another twist on this matter involves the Kinship Guardianship Act. This law was passed in response to the growing trend of grandparents taking care of their grandchildren when a biological parent is unable or unwilling to do so. This usually arises in the context of a parent with a drug problem.