New York law allows judges to order visitation by grandparents if it is in the grandchild’s best interest.
Grandparents do many things for their grandchildren and these meaningful relationships are as varied as the people in them and the families of which they are part. Grandparents may become caretakers when needed; grandparents can have teaching roles; some grandparents are all about doing fun and meaningful activities; and some are all about heaping attention and affection on their grandkids.
When a positive grandparent-grandchild relationship is interrupted by a parent cutting off contact, or by another family situation, both grandparent and grandchild can suffer. Sometimes those involved can talk through the problems and come to a solution that allows the relationship to continue, but not always.
In New York, the law may provide ways for a grandparent to seek court-ordered visitation to see his or her grandchildren who reside in the state, but only if the visitation is in the child's best interest.
A grandparent may pursue visitation when one or both of the grandchild's parents are deceased or when the "circumstances show that conditions exist which equity would see fit to intervene ..." The grandparent's visitation request can be brought during a court proceeding for the parents' divorce, separation or annulment, or by a petition for visitation or request for a writ of habeas corpus.
In some ways, New York's grandparent visitation laws are more liberal than those of some other states. For example, some states only allow grandparental visitation requests in extreme situations, like the death of one or both of the child's parents or a similarly grave circumstance. New York, on the other hand, allows grandparents to petition when both parents are alive based on equity, meaning fairness.
New York may also allow grandparents to request visitation when the parents' parental rights have been terminated or even when the child has been adopted by another family.
But filing the petition for grandparent visitation does not guaranty it will be granted.
The court first looks at whether the grandparent has standing, looking at the "nature and extent" of the grandparent's existing relationship with the grandchild and whether it is sufficient enough for the court to consider preserving the relationship through visitation. If the parents have objected to contact, the court will look at why and at whether the grandparent made reasonable attempts at continuing the relationship under the circumstances.
For example, a parent may not have allowed physical contact, but the grandparent may have continued to try to sustain the relationship by having sent cards and gifts or having kept phone or electronic contact with the grandchild.
If the court finds the grandparent has standing, it will then determine whether grandparental visitation is in the child's best interest. The judge will consider the unique circumstances of each family and grandchild. For example, New York courts have considered the nature of the relationship and whether the grandparent "supports or undermines" the child's relationship with the parents, including whether the grandparent's relationship with the parents is a negative one.
Finally, the court must give special weight to a fit parent's choice to keep his or her child away from a grandparent, considering the parent's constitutional right to care for the child and make parental decisions.
New York grandparent visitation law is much more complex than this introduction can cover. Any grandparent who is considering pursuing a visitation order (or custody order, if appropriate) should speak with an experienced family lawyer about the family situation and how to proceed.
In New York City, the attorneys at The Mandel Law Firm provide representation to grandparents seeking to establish their visitation or custody rights.
Keywords: New York, judge, visitation, grandparent, grandchild, best interest