In New Hampshire, both adoptive and natural grandparents may petition the court for "reasonable" visitation with a grandchild, provided that the child does not reside in an intact family, called a nuclear family in the New Hampshire statute. A intact or nuclear family does not exist if the parents are unmarried, divorced or separated; if a parent is deceased; or if a parent has given up or lost parental rights.
On the other hand, if a mother and father who are together deny the grandparent contact with the child, the grandparent will not have standing to file for visitation.
Another condition is that the grandparents must not have had their contact taken away prior to or "contemporaneous with" the disruption of the family. In other words, the grandparent should have been in good standing with the family prior to the death, divorce, or other event associated with the disruption of the family unit.
Factors To Be Considered
The laws of all 50 states require that visitation must be in the best interest of the child. Some states spell out factors to be considered in determining best interest. Others do not. New Hampshire is one of the states that provides clear guidelines for determining best interest.
In considering whether visitation would be in the best interest of the child, New Hampshire courts will consider the following:
- Whether visitation would interfere with the parent-child relationship or with parental authority
- The nature of the grandparent-grandchild relationship, including the frequency of contact, any time of residence with the grandparent and the length of time of any such residence
- Whether the child's physical and emotional health would be endangered by such visitation or lack of it
- The relationship between the grandparent and the parent of the child, including friction between the grandparent and the parent, and the effect on the child of such friction
- The circumstances which resulted in the "absence of a nuclear family," including divorce, death, termination or relinquishment of parental rights, or other circumstances
- The guardian ad litem's recommendation, if one was appointed
- The child's wishes, if he or she is old enough to express an opinion
- Any other factors which the court deems relevant.
If the grandchild's parents are not married, legitimacy or paternity must be established beforehand, and proof must be attached to the petition seeking visitation.
New Hampshire courts often suggest mediation in grandparent visitation cases.
Visitation After Adoption
In most states, adoption of a child terminates the rights of the grandparents, unless the adopting party is a stepparent. The New Hampshire statutes do not address the rights of grandparents after adoption. Therefore, prior to the 2011 case of In re Athena D, heard by the New Hampshire Supreme Court, it was unclear whether adoption terminates the rights of grandparents in New Hampshire. Although the grandparents in this case lost their suit, the opinion indicates that a termination of parental rights should be considered in the same way as any other disruption of the family unit.
In other words, it is possible, depending upon the circumstances, for grandparents to retain their visitation rights after adoption.
Two Cases Involving Standing
Two recent New Hampshire cases address the question of standing.
In the 2009 case of Kathaleen A. Dufton and Terry L. Shepard, Jr., a grandmother successfully sought visitation with her granddaughters.
Dufton, had become pregnant as a teenager and had given up her child for adoption. That child, Vicki Shepard, later tracked down her biological mother, Dufton, and Dufton developed a close relationship with her daughter and her two granddaughters.
When Shepard died from cancer, her husband tried to sever bonds with Dufton, stating that she had no grandparental rights because she had given up her parental rights to her daughter. The court found that because Dufton was the "natural" (biological) mother of Vicki Shepard, she did have the right to sue for contact with her grandchildren.
In a 2011 case heard by the New Hampshire Supreme Court, Pamela and Robert Lundquist sued for visitation with their grandchildren. Their daughter, the mother of the children, was alive, but the father of the children was deceased. The mother sought protection from the suit, saying that her family unit should be considered an intact family because she was "entirely capable of raising her three boys and has done so." The mother also argued that in such a situation the paternal grandparents might have standing but the maternal grandparents did not. The court found in favor of the grandparents, stating that the court was obliged to follow the "plain and ordinary language" of the statute, which states that grandparents have standing if the nuclear family is not intact.
See New Hampshire Revised Statutes, Section 461-A:13.