One of the tragedies of the ongoing opioid crises in New Hampshire is a situation where both parents become addicted and are unable to care for their minor child. In such situations, children can be removed from the parents’ home by DCYF and placed in foster care. To prevent such a serious disruption to a child’s life, many addicted parents turn to the child’s grandparents in order to raise the child while the parents cope with their addiction.
The problem with this is that the grandparents, standing alone, have no legal rights over the child. They cannot, for example, consent to medical procedures involving the child or determine where the child will live or go to school. In an effort to assist grandparents in caring for grandchildren whose parents’ suffer from substance abuse or dependence, the legislature recently has passed a statute which substantially amends the guardianship statutes to make it easier for grandparents to obtain guardianship over a grandchild.
Prior to this amendment, if a grandparent or any third party attempted to obtain guardianship over a child and there is an objection by one or both of the child’s parents, the proposed guardian would have to show clear and convincing evidence that the biological or adoptive parent is not capable of caring for the child and that the guardianship was necessary to prevent harm to the child. Under the amendment, a grandparent need only demonstrate by a preponderance of the evidence that the guardianship is in the best interest of the child.
This amended burden of proof only applies to situations where the biological or adopted parents are suffering from substance abuse or dependence. Further, the statute amends the current law in that when a parent seeks to terminate the guardianship the burden is on the parent to show that termination is in the best interest of the child; where previously if a parent moved to terminate the guardianship, the guardian had to prove it was not in the child’s best interest to terminate the guardianship.
While this statute appears to only apply to cases where the parents are dependent or abusing substances, one can imagine that it will almost assuredly face a constitutional challenge due to the reduced burden of proof. However, given the ongoing drug crisis in this state, Family Courts will see more and more situations where a grandparent is attempting to provide care for a child whose parents, due to their addiction, are unable to provide adequate care.
Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].