During a divorce, many serious, life-impacting decisions are made. For those with children, custody agreements are based on the needs of the child, the child’s best interest and a parent’s ability to provide adequate care and upbringing. If one parent does not live within the same state as the other parent, is unfit to care for the child or displays other factors that impact the ability to parent, it might be possible for another adult to step in to care for the child. While it is common for another family member to step forward, such as a grandparent since they are already provided grandparents’ rights, it could be possible for someone else to adopt the child.

In cases of adoption, however, this does not always limit or prevent a grandparent’s ability to visit and spend time with the grandchildren. According to New Mexico statute 40-9-2, grandparent visitation could still be petitioned for in cases where a grandchild is adopted or going through the adoption process.

This statute states that a biological grandparent is allowed to petition the court for visitation rights pursuant to Chapter 32A, Article 5 of the Adoption Act. In cases where a grandchild is adopted by a stepparent, a relative of the grandchild, a person designated in a deceased parent’s will to care for the grandchild or an individual who sponsored the grandchild during baptism or confirmation that was conducted by a recognized religious organization.

While the natural parent’s rights are terminated when a stepparent adopts a minor child, this process does not preclude a biological grandparent from attempting to establish visitation privileges or even a visitation agreement. However, it should be noted that in matters where parental rights are terminated in adoption proceedings not mentioned above, the Grandparent’s Visitation Privileges Act has no application in these adoptions.

Although it is clear that grandparents are likely to serve a major role in the upbringing of their grandchildren, some adoption processes could limit or prevent them from having access to them. If you are dealing with visitation issues due to custody issues or a pending adoption, it is important to fully understand what rights are provided to grandparents in a given situation. This will not only protect your rights, but also ensure the best interests of your grandchild are met.

Source: Lawserver.com, “New Mexico Statutes 40-9-2. Children; visitation by grandparent; petition; mediation,” accessed July 4, 2016