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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Family Law
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Experience:  19+ Years of Legal Practice in Family law matters.
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We recently closed on an adoption, after the child was placed

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We recently closed on an adoption, after the child was placed into state's custody. The parental rights were terminated and the adoption finalized. However, the biological paternal grandfather (who was never apart of the child's life) is now requesting visitation. Further, my inlaws have hired an attorney threatening to interfere with the adoption and demanding visitation with this child under "grandparental rights". The child is kin to my husband (his second cousin) so we are curious if either of them have grandparental rights to this child.
Submitted: 1 year ago.
Category: Family Law
Expert:  AlexiaEsq. replied 1 year ago.
Hi, thanks for your inquiry! I have been practicing family law for 17+ years and have specific experience with issues like yours. That being said...

Just to clarify -
1) Your husband and you both adopted your husband's cousin's child?
2) Is there another parent in the picture, i.e. if the cousin is the bio mom, where is hte bio dad? Did he sign off on the adoption?
3) How old is the child?
4) And I think you are saying that the bio father's father wants grandparent visitation, right?
5) and your husand's own parents (your inlaws) also want 'grandparent' visitation. Are they even the grandparents of the child? How are they connected?

------

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Repeat reminder: Due to rules of our states, nothing herein is intended as legal advice, only intended as general information in order that you may have a starting point for helping yourself and and better pursuing the details you need.

Expert:  AlexiaEsq. replied 1 year ago.
Forgive me, I accidentally hit ANSWER button but did not yet provide answer. It was supposed to be the Information Request button. Please just ignore any request to RATE that pops up until after I have provided an answer. Thanks,

Sincerely,
Alexia Esq.
Customer: replied 1 year ago.

I am sorry I forgot to explain. This baby was immediately placed in state's custody and we were granted guardianship of him a few days before he turned 3 months old. We returned home with him and have been caring for him since that time. We filed for the adoption after caring for him for a year and it was finalized earlier this month.

Expert:  AlexiaEsq. replied 1 year ago.
OK, and...if you could answer the following:

Just to clarify -
1) Your husband and you both adopted your husband's cousin's child?
2) Is there another parent in the picture, i.e. if the cousin is the bio mom, where is hte bio dad? Did he sign off on the adoption?
3) How old is the child?
4) And I think you are saying that the bio father's father wants grandparent visitation, right?
5) and your husand's own parents (your inlaws) also want 'grandparent' visitation. Are they even the grandparents of the child? How are they connected?
Customer: replied 1 year ago.


Good Afteroon. Did you not get the message we sent yesterday?

Expert:  AlexiaEsq. replied 1 year ago.
Yes, but I need you to answer the numbered questions. I think the answer to number 1 is yes, but the rest, just to clarify.
Customer: replied 1 year ago.

Good Evening. I am sorry, I guess it did not go through. I will try it again.


Just to clarify -
1) Your husband and you both adopted your husband's cousin's child?


Yes the adoption was finalized just this month.
2) Is there another parent in the picture, i.e. if the cousin is the bio mom, where is hte bio dad? Did he sign off on the adoption?


The birth mother is bipolar and quit taking her medication when we found out she was pregnant. Unfortunately, she became suicidal and ran out in front of car when she was 4 months pregnant. She was immediately in a coma and remained in one for over a year. Therefore, she was not able to care for the child when he was born. The birth father was incarcerated at the time of the child's birth and therefore he was unable to care for the child too. Upon birth, child protective services put the child in state's custody immediately and we offered our home to the child. We had guardianship of this child for over a year and decided to file for adoption. When we filed for adoption, both birth parents were served and failed to respond.
3) How old is the child?


He is 22 months.
4) And I think you are saying that the bio father's father wants grandparent visitation, right?


Yes but just in this past week. The biological paternal grandfather knew immediately about the child being placed into state's custody but has not made any attempts of contact until recently after the adoption was finalized.
5) and your husand's own parents (your inlaws) also want 'grandparent' visitation. Are they even the grandparents of the child? How are they connected?


No they are not grandparents. My husband's mother is the paternal aunt to the birth father and therefore a great aunt to the child. For a short time, they did want to play the grandparent role but refused to abide by our boundaries to ensure the safety of the child and began involving themselves into the visitation for the birth father and biological paternal grandfather. When we drew the boundaries of that not being their role, they hired an attorney and has threatened to interrupt the adoption and began demanding "grandparental rights".

Expert:  AlexiaEsq. replied 1 year ago.


Hi, and thank you.

With regard to your post:


We recently closed on an adoption, after the child was placed into state's custody. The parental rights were terminated and the adoption finalized. However, the biological paternal grandfather (who was never apart of the child's life) is now requesting visitation. Further, my inlaws have hired an attorney threatening to interfere with the adoption and demanding visitation with this child under "grandparental rights". The child is kin to my husband (his second cousin) so we are curious [QUESTION:] if either of them have grandparental rights to this child.

OK, New Mexico does appear to provide potential grandparent visitation rights to biological grandparents, by statute. However, neither have innate rights to actually have visitation now, if there is no court order to same. Note that the right to petition for same does NOT mean they will be granted and you do appear to have some strong points in your favor. The main one for the bio grandfather is his apparent lack of relationship nor attempt to have a relationship prior to now. Why did he wait til the child was safely adopted? Was he thinking, "gee, they may want me to take him or, hey, what if they say I have to pay child support for my son's child"? Or, did he simply not care enough to be there when the child was born, etc. (assuming he knew all along or full a long time). The great aunt - well, she is NOT a grandparent, so that is out, unless they creatively argue and some gullible court agrees, that she is "in loco grandparentis" (i.e. constructive relationship with the child of 'grandparent'). Also, you indicate behaviors of hers that were not particularly safe for the child OR were overtly contrary to your parental decisions as guardian, and that forced you to have to take measures in greater boundaries...which may tell the court that future involvement may just create strife amongst the adults that would not be great for a child...... So I think you may have the greater case here, if properl presented.

Here is the statute giving the grandparent the right to petition for visitation (whch doesn't mean he'll get it):

  • Section 40-9-2 - Children; visitation by grandparent; petition; mediation.
...

E. A biological grandparent may petition the district court for visitation privileges with respect to a grandchild when the grandchild has been adopted or adoption is sought, pursuant to the provisions of the Adoption Act [32A-5-1 NMSA 1978], by:

(1) a stepparent;

(2) a relative of the grandchild;

(3) a person designated to care for the grandchild in the provisions of a deceased parent's will; or

(4) a person who sponsored the grandchild at a baptism or confirmation conducted by a recognized religious organization.

 

AND:

 

G. When considering a grandparent's petition for visitation privileges with a child, the district court shall assess:

(1) any factors relevant to the best interests of the child; (for the non-grandparents, which don't appear to be included in the visitation statute, you may still want to point out the behaviors that led you to be forced to make express boundaries for these individuals. Interestingly, they are not the grandparents, but they have more ties to the child then the real grandparent. I wonder if they would pursue an argument of "contructive grandparent relationship" if that was the type of relationship it was (and you would argue NOT, if possible)...(and for anyone else, either visitation-seeker, if you can point out less then ideal living situation or habits that are contrary to the healthy loving raising of a child, you'd likely want to bring that up; criminal background helps)


(2) the prior interaction between the grandparent and the child; (for the one grandparent, he had NO interaction, didn't seem to care at all, so this can be helpful to you)

(3) the prior interaction between the grandparent and each parent of the child;

(4) the present relationship between the grandparent and each parent of the child;

(5) time-sharing or visitation arrangements that were in place prior to filing of the petition; (for the non-grandparents,

(6) the effect the visitation with the grandparent will have on the child;

(7) if the grandparent has any prior convictions for physical, emotional or sexual abuse or neglect; and

(8) if the grandparent has previously been a full-time caretaker for the child for a significant period. (clearly not)

 

I can imagine that this is incredibly stressful, and I can tell from your well-stated post that you are thoughtful and articulate and knowledgible. Right now, there seems to be no petition, and if either of the two parties seek to push it, one or two may buck up the effort/time/dollars to file a petition. Right now, they have no right to visitation, but it may be a good idea to prepare a bit just in case. I.e. any evidence gathering, etc., just in case.

 

I hope this helps! Let me know if you need follow up before or after RATING me. And PLEASE know that my job depends on a POSITIVE rating now and at least an 8-10 feedback rating later. Thanks! I won't forget your support.

Sincerely,

Alexia Esq.



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AlexiaEsq., Managing Attorney
Category: Family Law
Satisfied Customers: 11694
Experience: 19+ Years of Legal Practice in Family law matters.
AlexiaEsq. and 3 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you so much for this information! In regards to "constructive grandparent relationship"; initially, we did involve them in our child's life as 'grandparents'. However, upon several occasions they have endangered his emotional and physical well-being.


For example, they did not follow the pediatrician's advice of how to care for him when they baby sat and we were at work. Due to their refusal of taking his temperature and giving the medications as doctor ordered, his temperature got up to 104.7! Further, they violated the diet plan the pediatrician stated to us, we had informed them of this, and as a result the child experience alot of stomach pain. Both of these things endangered the child's well-being and we no longer allowed them to babysit.


Further, they have repeatedly involved themselves in visitation with the birth parents. Their names were nowhere on any of the court documentation and they were angered that we drew that boundary of not getting involved in the visitation/custody; this is after they have scheduled 3 visitations for the birth father without our permission or knowledge of.


Finally, they both repeatedly criticized our parenting in front of the child (from how we brush his teeth, change his diaper, what we feed him, the clothes we buy him, etc.)


They have no criminal history. However, they do have a 38 year old son still residing in their home who is very dependent upon them and due to his behavior; we feel it is not safe for our child to be around him. Further, that speaks volumes about their parenting abilities as well.


In regards to "time-sharing or visitation arrangements that were in place prior to filing of the petition", there were no regularly scheduled visitations with them ever. However, we did offer them to visit at our house under our supervision due to their past behavior of endangering the child's emotional/physical well-being, to which they refused. They began demanding visitation unsupervised and/or at daycare. We disagreed with both and again offered them visitation at our house.


No petition currently in place, but the threat has been made for one to occur. We will not know until after the mediation occurs.

Expert:  AlexiaEsq. replied 1 year ago.

Thank you so much for this information! Very welcome.

 

In regards to "constructive grandparent relationship"; initially, we did involve them in our child's life as 'grandparents'. However, upon several occasions they have endangered his emotional and physical well-being. You will probably want to research caselaw on this potential theory, as in, does your local court allow such a stretch. And I take it you are saying you referenced them as "grandma" etc? If a court will recognize "constructive" relationship, that invitation to her to be the grandma would be in her favor, obviously, but the fact that you believe and took action on her endangering his well-being, in both emotional and physical ways, would likely take a bigger role.


For example, they did not follow the pediatrician's advice of how to care for him when they baby sat and we were at work. Due to their refusal of taking his temperature and giving the medications as doctor ordered, his temperature got up to 104.7! OK, so you may be able to further request (if visitation were granted) that it be SUPERVISED, since she may be incompetent mentally to handle a the care of a little one.

 

Further, they violated the diet plan the pediatrician stated to us, we had informed them of this, and as a result the child experience alot of stomach pain. What ignorant people. If you have proof of this (such as a doctor record, perhaps you called the doctor about it, etc., retain that proof).

 

Both of these things endangered the child's well-being and we no longer allowed them to babysit. Understood!


Further, they have repeatedly involved themselves in visitation with the birth parents. I'm not sure the pertinence here - they are related to one of the birth parents? And they visited with these relatives?

 

Their names were nowhere on any of the court documentation and they were angered that we drew that boundary of not getting involved in the visitation/custody; In WHAT visitation custody? Are you saying the bio parents visited with the baby when you were the guardian?

 

this is after they have scheduled 3 visitations for the birth father without our permission or knowledge of. OK, I think you are saying that when they were babysitting, they'd invite the bio dad over, and or the bio mom?



Finally, they both repeatedly criticized our parenting in front of the child (from how we brush his teeth, change his diaper, what we feed him, the clothes we buy him, etc.) OK, that can be big - a bit of parental alienation. I can't stand it when my relatives chime in, it is insulting and gets them no where nice.


They have no criminal history. However, they do have a 38 year old son still residing in their home who is very dependent upon them and due to his behavior; we feel it is not safe for our child to be around him. Why?

 

Further, that speaks volumes about their parenting abilities as well. Not always, but would likely depend on the specifics.


In regards to "time-sharing or visitation arrangements that were in place prior to filing of the petition", there were no regularly scheduled visitations with them ever. Good!

 

However, we did offer them to visit at our house under our supervision due to their past behavior of endangering the child's emotional/physical well-being, to which they refused. This may be good - you were willing to allow them visits and they did not care enough about seeing the child to take what they could get, they'd rather have nothing.

 

They began demanding visitation unsupervised and/or at daycare. We disagreed with both and again offered them visitation at our house. Do you have emails or other documentation to these communications?


No petition currently in place, but the threat has been made for one to occur. We will not know until after the mediation occurs. Is this a private mediation you both have agreed to? Since there is no court involvement?

Customer: replied 1 year ago.

Here are some answers to your questions. Thank you for asking them!


 


In regards to "constructive grandparent relationship"


I have spoken with a couple people here and based upon the NM statute, it is believed that they have no grandparental rights due to her being the biological great aunt of the child and not the biological grandparent.


 


Great idea of getting docor notes! Thank you! I will contact them and get these records.


 


I'm not sure the pertinence here - they are related to one of the birth parents? And they visited with these relatives?


My mother in law is the aunt of the birth father. However, they repeatedly went behind our backs and scheduled visitation for him without our knowledge/permission. My inlaws names are XXXXX XXXXX any of the court documentation for guardianship and now on the adoption finalization. Therefore, the visitation was responsibility of the birth father to schedule his visitation with us, not theirs. Important side note, the birth parents reside in a completely different state. We repeatedly told my inlaws that visitation needs to be discussed between us and the birth father; not them, us and the birth father. They became angry for us drawing a boundary with them, but even more so on the boundary of not getting involved in visitation/custody.


 


In WHAT visitation custody? Are you saying the bio parents visited with the baby when you were the guardian?


Due to the child being placed into state's custody in another state, when that state granted us guardianship, both birth parents were allowed visitation with the child once per quarter of the year in that state in which the child resides. Further, we were ordered to do weekly phone calls to each of them. Also, it was the responsibility of the birth parents to initiate communication over visitation and arrange and pay for their own way here. This is where the tension began. We were expected to pay for the birth father's transportation here to our state and us allow him to stay in our home. The birth father had threatened to "kidnap" this child from us several months back and we refused to allow him in our home. Further he has a gambiling addiction (which is why he was in prison for turning a $400 check into a $4000 one--bank didn't catch it until later) and had repeatedly stolen many items from family members' homes to pawn off and get cash. We did weekly calls to both birth parents and the birth father continued to gamble his money away instead of saving money for his trip to come and see the child. Repeatedly it was mandated for us to pay for his trip and each time we refused, the tension continued to grow.


 


The three visitations were ones my inlaws arranged without our knowledge/permission. Since the birth parents reside in another state, we would need sufficient time to prepare for their visit to schedule time off of work/daycare/etc. Further, visitation is the responsibility of the birth parents, not my inlaws.


 


Their adult son resides with them due to mere dependency. He does have a mental illness, schizophrenia, but he is on the proper medications and it is not so severe that he cannot function. He just doesn't have to; they pay his bills, feed him, do his laundry, etc. Further, this son has a history of being violent towards me and completely inappropriate to me several times. I feel very uncomfortable around him due to his past behavior--which of course is he is never held accountable for because he has schizophrenia.


 


Supervised visitation at our house was very fair. However, we now know that they are a danger to our family's emotional welfare and the child's well-being. The child does not need to see his parents being degraded and belittled. They refused to listen to that.


 


Do you have emails or other documentation to these communications?


No emails but many text messages on both of our phones. We have saved those just in case something like this happened. Again many threats have been made about this.


 


Is this a private mediation you both have agreed to? Since there is no court involvement?


Yes. In the letter from their attorney, it was basically a threat that they were requesting mediation before "pleaing for intervention" from the court to interrupt the adoption. They do not know the adoption has been finalized and the main reason of meeting with them in mediation is to inform them of this. Further, we received an email from their attorney and they have begun demanding weekly unsupervised visitations, authority to take the child anywhere they choose to, and to have atleast one overnight visit per month. All of course without parental permission. That is unrealistic and shows how demanding they are.

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