There are three conditions where grandparents can petition the Children's Court for custody of their grandkids. The New Mexico Grandparents Visitation Privileges Act provides the following scenarios:  

We discussed one of those scenarios in our November 28, 2014 installment. That article focused on the Kinship-Guardianship process whereby grandparents can petition for custody and guardianship for their grandchildren in cases where the biological parents have left the children with grandma and grandpa for an extended period of time and with no real end in sight.

The second scenario is pretty easy to understand and that's when the child's or children's parent dies leaving the grandparents as the children's only suitable family to parent them. Sometimes this situation is covered in the biological parent's will or estate plan. Oftentimes it's not and the parent's death is quite unexpected.

The third situation is during any legal separation, divorce, or paternity case involving the children. For example, the parents are divorcing, grandparents can basically intervene in the case and petition the district court for custody of the children.

These scenarios are just that and do not guarantee that the grandparents will prevail. The Court must consider what is in the best interests of the child, the very same standard that the Court applies in all cases dealing with child custody. Often grandparents will need to prove through expert testimony why the Court should grant them custody as opposed to one of the biological parents or perhaps another intervening grandparent(s).

Another situation is a pending child abuse/neglect case. If the children are taken into CYFD custody because of allegations of suspected abuse/neglect by the biological parent(s) the grandparents can contact CYFD and fight for custody. In these types of cases there's a presumption that the child should be staying with blood relatives such as grandparents. The basic caveats are that the grandparents can provide a safe environment etc.

If you have additional questions, please contact me. Thanks

Even in tough times, we all are called to take a few moments and inventory our lives. Despite whatever challenges we are facing, all of us have at least something to be thankful for. 

Have a Happy and drama-free Thanksgiving Weekend!

Here's a great article from the Atlanta Bar Association. People might find it interesting. While this information is firstly based on Georgia law and secondly it's offered herein for general educational purposes, New Mexico follows similar guidelines as suggested in this article. You're invited to ask your attorney for specific details.

Relocation: Risk Assessment Howard Drutman, Ph.D. & Marsha Schechtman, LCSW(The Family Lawyer, Atlanta Bar Association, July 2011)

One of the most difficult areas of child custody litigation is the dreadedrelocation case. These cases are increasing due in large part to the current economic conditions combined with an increasingly mobile society. Courts throughout the world are struggling with philosophical assumptions to drive decision making in relocation cases. Georgia went through its last paradigm shift with the Bodne v. Bodne Supreme Court decision. No longer is there a presumption that if the primary custodian would like to relocate it is automatically in the child’s best interest. 

Currently the focus is on what is the child’s best interest at the time of the relocation.When there are two competent and loving parents and one of them must relocate, the children suffer even under the best of circumstances. William Austin, Ph.D. conceptualized relocation evaluations in terms of risk management (Austin, 2008). The goal of Dr. Austin’s risk assessment model was to assess and recommend the least damaging alternatives to resolve the relocation as well as the behaviors to engage in to minimize the negative effects of relocation on the child. He referred to his model as the Relocation Risk Assessment. Dr. Austin saw the role of the child custody evaluator in these relocation cases as the scientist who predicts potential outcomes for the court. The examiner presents in their findings the risks and benefits to the child if they relocate or if they stay with the other parent who is not relocating.

The effects of relocation on children will be covered in a future article. The focus of this article is on factors that the psychological literature has shown to be significant risk factors to children in relocation cases. Writing in the journal, Family Court Review in 2008, Dr. Austin outlined his Relocation Risk Assessment which contains a number of risk factors that should be addressed to determine what is in the best interest of the child during an assessment for a pending relocation. The following is a description of the major risk factors to be assessed:

1. AGE OF THE CHILD: Very young children are at risk of disrupting their attachment relationship with their non-residential parent. There is also a risk of the non-residential parent dropping out of the child’s life or at best playing a diminished role. Adolescents are also at high risk since in a relocation situation the teenager may end up without a father figure to stabilize the adolescent behavior. Furthermore, traveling to the non-custodial parent also means taking the teenager away from their peer support network which may lead to the adolescent feeling that they’re missing out on peer activities while with the non-custodial parent.

2. GEOGRAPHICAL DISTANCE AND TRAVEL TIME: Whenever either parent lives greater than a one-hour travel time from each other there is an increased likelihood that the noncustodial parent will drop out of the child’s life or have a diminished role in the child’s life (Hetherington & Kelly, 2002).

3. PSYCHOLOGICAL STABILITY OF THE RELOCATING PARENTS AND PARENTING EFFECTIVENESS OF BOTH PARENTS: It is important to know the psychological stability and level of functioning of the relocating parent. If the parent has a significant psychiatric disorder or an addiction this could affect the parent’s ability to manage the child’s adjustment to a new location. For example, if the parent is struggling with maintaining sobriety the child may not get the necessary attention and assistance to help them adapt to a new environment, school, friends, and activities. An impaired parent will be challenged to effectively assist the child with the adjustment to their new location. To further complicate the situation is the child’s missing the relationship with the non-custodial parent which is likely to be a significant loss for the child.

4. INDIVIDUAL RESOURCES/INDIVIDUAL DIFFERENCES IN THE CHILD TEMPERAMENT/SPECIAL DEVELOPMENTAL NEEDS: The child’s temperament and resourcefulness should be assessed to evaluate any special needs and strengths of the child. In 1986, Block, et al. studied young children and found that pre-separation measures of psychological functioning were the best predictors of post-divorce adjustment. In other studies temperamental differences of children predicted post-divorce adjustment. It should also be noted that males are at significantly higher risk during relocation. Children with an easier temperament are better able to handle the challenges inherent in relocation to a new area. Some of the areas to assess in the child are their social and emotional intelligence and their ability for successful social interaction. This social competence would help the child adapt social to the new environment and assist the child in developing new peer relationships and support networks.

5. INVOLVEMENT BY THE NONRESIDENTIAL PARENT: A number of researchers have studied the relationship between children and their non-custodial parent. The research is clear that children have their best overall adjustment, post-divorce, when they have meaningful relationships with both of their parents combined with low conflict between their parents. Research also indicates that children do better when they have a relationship with their non-custodial parent. The evaluator needs to assess the extent to which the particular relocation will alter the non-residential parent’s parenting time with the child following the relocation.

6. GATEKEEPING AND SUPPORT FOR THE OTHER PARENT-CHILD RELATIONSHIP: In a prior edition of The Family Lawyer (Drutman & Schechtman, February 2011) we wrote on the concept of gatekeeping.  Gatekeeping is essentially the custodial parent restricting or excluding the non-custodial parent from child care and involvement with the child. Research has shown that children do better when they have relationships with both of their parents. A relocating parent who uses gatekeeping behaviors to exclude the non-custodial parent leaves the child at risk for alienation, visitation refusal, and other troubling behaviors.

7. INTERPARENTAL CONFLICT AND DOMESTIC VIOLENCE: Numerous studies have shown the negative effects on the children of exposure to verbal conflict between parents. This is particularly true of children whose parents are divorced. As the level of interparental fighting increases, so does the risk to the child. Domestic violence places the child in significant risk regardless if the violence is directly targeted at the child or not.

8. RECENTNESS OF THE MARITAL SEPARATION: Hetherington (1993, 1998 & 1999) researched the effects of conflict on children post-divorce. Hetherington noted that conflict is significantly higher during the time of the divorce and for a period of time after the divorce is final. During that period of time there is less authoritative parenting, greater parental stress, and poorer adjustment by the children. It should be noted that parental conflict tends to decrease at approximately 2 years post divorce. It is much more risky to make a move during the first two years post-divorce since the family unit is still in transition and adjusting to the new family constellation. Holding off on relocation for at least two years post-divorce may allow the individual family members to psychological settle down and thus have the psychological resources to assist the child.To determine the appropriateness of relocation it is important to assess all of the above issues to thoroughly seek out the risks that are facing the child if they move to the new location or they stay in their current location. 

William Austin, Ph.D., writing in the journal Family Court Review (2008, p. 359) writes:“The evaluator can help the court by making predictions about the degree of risk for what level of long-term harm, or developmental outcomes for the child, that are likely to be associated with the decisional alternatives. Only the decision maker can determine if the level of predicted risk and stakes surpasses a “threshold of harm” (Austin, 2000b), to deny the child’s relocation, and if needed, to change the primary residential parent. The nexus between best interests and least detriment is central to the process where mental health expert analysis becomes transformed into judicial prediction and decision. In the end, the trier of fact makes a discretionary decision if relocation would be expected to produce a sufficient level of harm to the child to deny the move or if the data suggest there is likely to be a successful relocation. 

The evaluator’s risk analysis and behavioral descriptions of the family can help the decision maker reduce the level of uncertainty in resolving the relocation dilemma.”It is essential to fully assess the risks, benefits, and the protective factors to make the best prediction of what is likely to happen to the child with and without the proposed relocation. Developing a plan to mitigate the negative effects of the relocation will entail behavioral accommodations to decrease the risks from the lists above. For example, teaching parents how to decrease conflict; increase appropriate parenting behaviors; allow significant involvement in parenting of the non-custodial parent; assisting the child learn coping skills, etc. will lead to a better outcome regardless if the child relocates or not.Since we do not have a crystal ball that foretells the future a risk assessment evaluation offers the best systematic approach to aid in the determination of what is in the child’s best interest in a potential relocation.

Austin, W.G. (2008b). Relocation, Research, and Forensic Evaluation: Part II: Research in Support of the Relocation Risk Assessment Model. Family Court Review, 46.Braver, Sanford, et. al. (2003) Relocation of Children After Divorce and Children’s Best Interests: New Evidence and Legal Considerations. Journal of Family Psychology, 17, 2.Drutman, H. & Schechtman, M. (2011) Maternal Gatekeeping: What is it, and is it Always Bad? The Family Lawyer, Atlanta Bar Association-Family Law Section. February 2011.Hetherington, E.M. & Kelly, J. (2002) For better or for worse: Divorce reconsidered. New York: Norton.

Recently a client asked me how to convince the Court to allow them to move out of state and take their kids with them. We talked about the nature of the proposed move and the fact that the other parent would likely oppose the move. Our Courts really do not like kids to move out of New Mexico even if the moving custodial parent has good solid reasons for the move. If you are the custodial parent and wish to relocate and take your children with you, and the other parent is uncooperative, you will need the Court's permission. An evidentiary hearing will likely be held and you will need an expert. The expert is a licensed psychologist who focuses on custody evaluations. One key thing I stressed to my client was the importance of an expert witness in terms of convincing the powers that be to grant your petition.Often times parents do not wish to pay for an expert thinking it to be an extravagance. However this hearing is often times the only shot at the Court seriously entertaining your request. The same idea was expressed throughout a recent two-day educational institute I attended on custody issues. I'm not trying to refer people to an expert, but simply to help you understand their importance.