Death of Parents

• New Mexico law grants to a grandparent the right to seek custody of a minor child when both parents of that child die. Theoretically, all grandparents are on equal footing in seeking custody in such a situation. However, a grandparent with a more significant relationship with the child will have priority.
  
  

Parents not Available

• If the parents of a minor are unavailable to care for the child (incarceration, for example), a grandparent is able to seek custody under New Mexico law.
  
  

Residence with Grandparent

• A grandparent who provides a primary residence and continual care for a minor child can make a claim for custody even if the natural parent is otherwise available. For example, if a parent leaves her child with a grandparent for a period of time over six months, the best interests of the child may be served by granting actual custody to the grandparent.
  
  

Visitation

• In New Mexico, a grandparent can seek visitation when the parents of a minor child divorce. The visitation permitted a grandparent under New Mexico law is above and beyond any visitation granted to the non-custodial parent. Grandparents may even seek visitation rights if a child is legally adopted by someone else, such as a step-parent or a guardian designated by the parents in the event of their deaths.
  
  

Best Interest of Child

• New Mexico law applies the standard of what is in the best interest of a child in determining custody, including with a grandparent. The factors considered include wishes of the parties, wishes of the child, relationship between the child and the person seeking custody, as well as the mental and physical condition of the parties.