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Bar News - November 15, 2013


Family Law: Raising Grandchildren: A Reexamination of the Grandparents Visitation Statute

By:

Over the last 40 years, America has seen and continues to see the effects of changing patterns of fertility and mortality. Using figures from the US Census Bureauís American Community Survey, a recent CNN article stated that as of 2011, there were at least 2.7 million grandparents raising grandchildren in the United States.

A number of factors are driving the increase in grandparents serving as the primary caregivers for grandchildren. Grandparents often step in to raise grandchildren when a parent is unavailable due to death, illness, incarceration, or abandonment. Grandparents saddled with child-rearing responsibilities in these situations are faced with balancing the stress of the departure of their own child with the sudden shift in caretaking responsibilities at a time in life when retirement should be imminent.

Even in situations where a cohesive family is intact, the need for two income-earners in a family often motivates parents to turn to grandparents for daycare responsibilities. For many children, grandparents are a source of stability and increasingly perform routine activities traditionally assigned to parents, such as day-to-day decision-making and providing for the childrenís needs.

Taking into account this increased involvement and presence of grandparents in the family structure, it is important to reexamine the legal rights available to grandparents. In many situations, legal intervention is not needed, and grandparents seamlessly exercise their roles in their grandchildrenís lives with the cooperation and consent of the childrenís parents. Unfortunately, situations do arise where a grandparent may need to intervene into a domestic relations matter to petition for visitation or file for guardianship over a grandchild.

New Hampshire Law

In New Hampshire, grandparents enjoy certain rights to visitation with their grandchildren, sometimes even over the objection of the parents. Pursuant to RSA 461-A:13, grandparents may petition for visitation with their grandchildren, if there is an absence of a nuclear family, whether by divorce, death, termination of parental rights or otherwise.

It is important to note, however, that a grandparent cannot petition the court for visitation in situations where access by the grandparent to the minor grandchild has been restricted for any reason prior to or contemporaneous with the divorce, death, relinquishment or termination of parental rights, or other cause of the absence of a nuclear family.

The petition for visitation must be entered in the court that has jurisdiction over the divorce, legal separation, or ongoing proceeding. In the case of a death of a parent, stepparent adoption, or unwed parent, the petition should be entered in the court having jurisdiction to hear divorce cases from the town or city where the grandchild resides. If the parent of the minor child is unwed, then any grandparent filing a petition for visitation must attach proof of legitimation by the parent or establishment of paternity to the petition for visitation.

RSA 461-A:13, II enumerates factors that the trial court must consider in determining an award of grandparent visitation with a minor child in the absence of a nuclear family. The factors include:
  • Whether such visitation would be in the best interest of the child;
  • Whether such visitation would interfere with any parent-child relationship or with a parentís authority over the child;
  • The nature of the relationship between the grandparent and the minor child, including but not limited to, the frequency of contact, and whether the child has lived with the grandparent and length of time of such residence, and when there is no reasonable cause to believe that the childís physical and emotional health would be endangered by such visitation or lack of it;
  • The nature of the relationship between the grandparent and the parent of the minor child, including friction between the grandparent and the parent, and the effect such friction would have on the child;
  • The circumstances which resulted in the absence of a nuclear family, whether divorce, death, relinquishment or termination of parental rights, or other cause;
  • The recommendation regarding visitation made by any guardian ad litem appointed for the child pursuant to RSA 461-A:16;
  • Any preference or wishes expressed by the child; and
  • Any such other factors as the court may find appropriate or relevant to the petition for visitation.
The best interests of the grandchild are paramount when the court considers an award of grandparent visitation. Taking into account a parentís fundamental right to the care and custody of their child and the well-established presumption that fit parents act in their childís best interest, a grandparentís right to visitation is narrowly construed to comport with state and federal constitutional requirements.

In applying 461-A:13, II, the court must weigh the first two statutory factors, whether such visitation would be in the best interest of the child and whether such visitation would interfere with any parent-child relationship or with a parentís authority over the child, more heavily than the remaining listed factors.

Following the Rupa decision, the trial court must now make express findings of fact with respect to all of the enumerated factors of 461-A:13 that it considers.

Due deference will be given to a fit parentís judgment regarding the best interests of his or her child. For these reasons, it may make sense for a grandparent to try to work out visitation issues with a recalcitrant parent collaboratively, to prepare a parenting plan and schedule that comports with the best interests of the grandchild.

As the number of grandparents serving as the primary caregivers for grandchildren continues to rise, it is likely that New Hampshire will see an increase in grandparent visitation issues in the years to come.


Amy Goodridge is an attorney in the Family Law/ Domestic Relations Department at the law firm of McLane, Graf, Raulerson & Middleton, Professional Association. Amy can be reached at 603-628-1323 or at amy.goodridge@mclane.com.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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