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Changes in Law Make Things Easier for Grandparents Seeking Guardianships

By Attorney Andrea Q. Labonte

As of January 1, 2018, there are several changes to the statute governing guardianships over minors in New Hampshire. These changes will make it easier for grandparents to become guardians of their grandchildren in cases where parents have substance abuse issues.

Nashua Republican Mariellen MacKay, who was the prime sponsor of House Bill 629 which was signed into law last year, had estimated there were 10,000 grandparents caring for their grandchildren in the state. And in recent years, New Hampshire has seen a spike in substance abuse and has one of the highest opioid death rates in the country, according to state health officials.

Many of these grandparents are providing care for a child because one or both parents are unable to do so because of a substance abuse problem. The problem may be significant enough to force the grandparent to seek Court appointment as the guardian of his/her grandchild. Guardianship gives a grandparent the powers and responsibilities of a parent as to the grandchild’s support, care and education.

Grandparents' Rights & Visitation in New Hampshire Law

According to RSA 461-A:13, adoptive or biological grandparents have the right to petition for visitation rights for minor grandchildren. The law allows grandparents to pursue visitation if the grandchild's parents are divorced, have passed away, or had their parental rights terminated.

How courts determine whether to grant visitation rights to a grandparent in New Hampshire:

  • The visitation must be in the best interests of the child emotionally and physically
  • The relationship between the child and grandparent, including frequency of contact and if the child has lived with his or her grandparents
  • Whether visitation would negatively affect the parents' relationship with their child
  • The reason for the nuclear family's dissolution
  • Whether the child is mature enough to make a decision
  • Other related factors

Generally, to be granted guardianship under state law, a person must prove that the best interests of the minor child require “substitution or supplementation of parent care and supervision to provide for the essential physical and safety needs of the minor.”.

Grandparents Now Given Preference Over Third Parties

With changes in the law, the Court must now give preference in appointment of a guardian of a minor to a grandparent over other third parties or agencies in cases where a parent’s substance abuse or dependence forms the basis for why the guardianship is necessary.

In addition, in cases where one or both parents object to the guardianship, the burden of proof has been made easier for the grandparent to meet in cases involving substance abuse and dependence. The prior standard required the grandparent to establish by “clear and convincing evidence” that the guardianship was necessary. The new standard requires only a showing by a preponderance of the evidence (ie. more likely true than not true) This change makes it easier for grandparents to obtain the guardianship over their grandchild.

Finally, whenever a petition for guardianship is filed by a grandparent, the Court is now required to provide the grandparent with a brochure describing potential state benefits the child may be eligible to receive.

If you have questions or concerns about a guardianship, contact the attorneys at Shaheen & Gordon. Our team of family law attorneys are experienced in these matters and can help you and your family navigate through what can be difficult challenges with professionalism and care.