In our blog we will try to provide you with general information regarding family law, as well as updates in important cases and statutes dealing with family law in New Hampshire. This is not to be construed as legal advice. Every case is unique and small facts can make a difference.
Grandparents Legal Rights In New Hampshire
Most New Hampshire residents are familiar with visitation within the context of parenting matters or a divorce. At the same time, most individuals are unaware that grandparents in New Hampshire possess specific rights for visitation with their grandchildren. Although parents maintain constitutional responsibilities and rights with regards to how they raise their own children, including who they allow to see their children, where they live, and what school they attend, NH statute RSA 461-A:13 imbues NH grandparents with their own set of legal rights.
When a situation arises where the parents of a minor child determine that their own parents can no longer visit with their grandchildren, the grandparents possess the legal right to petition a New Hampshire court for a court order for visitation on the provision that they meet the statute’s requirements. In order to request the right for visitation, a nuclear family unit must be absent, whether by death, divorce, or termination of parental rights. Simply put, if a father and mother mutually decide that the grandparents can no longer see their grandchildren, then the statute will not allow a grandparent(s) to seek visitation.
If a nuclear family unit does not exist, a New Hampshire court will examine the factors laid out within the statute to decide whether or not granting visitation would be within the child’s best interest. This list of factors includes:
§ If the best interests of the child are served by granting visitation
§ Whether or not a relationship with a grandparent would interfere with a parent’s authority over the child or the parent-child relationship
§ The prior existence of a relationship between the child and grandparent (e.g. frequency of contact, etc.)
§ How the relationship between the parents and the grandparents would affect the child
Beyond reviewing the aforementioned factors, an NH family court will appoint a guardian ad litem for the child and carefully listen to their recommendations regarding the grandparents’ visitation petition. A court may also take the child’s personal wishes into account if he or she is deemed emotionally mature.
An excellent example of this statute is the case of Dufton v. Shepard, which was heard by the New Hampshire Supreme Court in June of 2009. The plaintiff, Kathleen Dufton, gave birth to her daughter, Vicki, when she was 16 years old and subsequently placed her for adoption. When Vicki was 26 years of age, she reunited with her biological mother. From that point forward, the two shared a close relationship, and Kathleen Dufton was present for all of the important occasions in her grandchildren’s lives, including births, birthdays, vacations, and so forth. When her biological daughter developed cancer and passed away, Ms. Dufton was by her side. After Vicki died, her husband, Terry, actively prevented Kathleen from seeing her grandchildren, and Kathleen petitioned an NH court for a visitation order under the grandparents statute.
Terry requested that Kathleen Dufton’s petition be dismissed, stating that she should not be considered a “natural” grandparent because she had relinquished Vicki for adoption. However, the court determined that “natural” stood for “biological” and that Kathleen’s decision to give Vicki up for adoption had no bearing on the current state of her relationship with her grandchildren. She was subsequently granted visitation rights.
While grandparents in New Hampshire can request visitation rights under New Hampshire’s state law, every state does not afford the same protections to the grandparent-grandchild relationship. For example, the United States Supreme Court, in the case of Troxel v. Granville, overturned a Washington state statute that imbued grandparents with the legal right to petition a court for visitation with their grandchildren over parental objections. In their opinion, the court specified that parents possess a constitutional legal right to raise their children as they deem appropriate. In their ruling, it was affirmed that a presumption exists that fit parents act in accordance with the best interests of their children.
Despite the ruling in the Troxel case, NH family courts continue to grant rights to grandparents because state law has established safeguards for the rights a parent has over their children. Even if the grandparents are, in some manner, purposefully or accidentally infringing upon the parents’ rights, what is most important is the children’s best interests. In some scenarios, a child’s best interests are best served by maintaining a relationship with their grandparents, even if the parents object.
To learn more about grandparents’ rights in the state of New Hampshire, please contact one of our experienced NH family lawyers today.
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