Grandparents’ Rights

People often look forward to the day they become a grandparent. However, this joy can be disrupted if the grandchild’s parents divorce or breakup. A grandparent’s rights in this scenario vary depending on numerous factors such as jurisdiction specific rules, the marital status of the parents, and whether the parents are alive.

All 50 states have enacted legislation that recognizes the right of a grandparent to see their grandchildren. However, the substance of these laws varies widely. In New Hampshire, a grandparent, whether paternal or adopted, may petition the courts for rights of reasonable visitation with a grandchild in the event the child’s nuclear family dissolves. That event may be divorce, death, relinquishment or termination of parental rights, or other reasons resulting in the absence of a nuclear family. The court follows the “best interest of the child” standard when dealing with grandparents visitation rights and will evaluate the prior relationship between child and grandparent in its determination.

Rights have also been granted to a “step grandparent.” The New Hampshire Supreme Court has held that where a stepparent is a “psychological parent to the child,” the grandparent shall be granted visitation rights. The court has also stated that its focus is not the protection of the grandparent’s rights but rather, the best interest of the child.

However, where the family is intact, the rights of a grandparent change dramatically. The United States Supreme Court, in an opinion written by Justice O’Connor, invalidated a Washington state statute granting visitation rights to grandparents.  The statute was considered overly broad because it effectively permitted a court to disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party (whether related to the children or not) affected by their decision filed for visitation. While this decision invalidated a Washington state statute and not a New Hampshire law, the court’s ruling is important because it established that parents have a fundamental right to make decisions concerning the best interests of their child. Thus, parents have the right to deny the child’s grandparents visitation rights.

If you are having problems with grandparent visitation issues, consider the following:

  1. Keep lines of communication open in order to foster a positive relationship that will benefit the child. This can lead a court to decide that visitation rights are in the best interest of the child.
  2. In the event of a divorce, discuss and negotiate a visitation schedule in the divorce settlement.
  3. In order to avoid a court battle, try mediating your dispute in attempt to reach an agreement that suits everyone.

With legal assistance, you will be able to continue your important and loving relationship with your grandchild.

Attorney Michael Fontaine has been practicing for 25 years and focuses his practice on family law. He can be reached at (603) 883-0797.