Grandparents' Custody and Visitation

Grandparents' Custody and Visitation

Grandparents’ rights in New York family law is very a very complex and sensitive issue. If you are a grandparent seeking custody or visitation of a grandchild or grandchildren or a parent wanting to discuss the issue, contact attorney Ingrid Gherman for assistance. In more than 35 years of matrimonial law practice, Ingrid has handled an abundance of cases involving this issue. Set up a consultation with Ingrid by calling (212) 941-0767 or sending the convenient on-line form.

Grandparents' Rights to Child Custody

In January, 2004, the New York Domestic Relations Law was amended to give custody rights to the grandparents of a child residing in NY State in a case where the grandparents can demonstrate the existence of "extraordinary circumstances". Such an "extraordinary circumstance would be an "extended disruption of custody". This would constitute a prolonged separation of the child and the parent for at least 24 continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the grandparents. The NY Court may find that extraordinary circumstances exist where the prolonged separation is less than 24 months, based upon other circumstances.

Grandparent Visitation Issues in New York

In cases where both parents or either parent of a minor child are deceased or where specific conditions dictate that the Court intervene, Domestic Relations Law §72 states that the grandparents or grandparent can apply to the Family Court or Supreme Court for visitation rights.

This statute is based upon the compassionate view that grandparents’ visits are a valued element of a child's life and the children will reap considerable benefit from these visits with their grandparents; and that the children will not derive these benefits from another bond.

There is no visitation right which is automatic or absolute that the law allows. Instead, this statute puts in place a procedural mechanism through which grandparents can acquire standing in order to apply for visitation with their grandchildren or grandchild.

Visitation request by grandparents

A court determining a petition for grandparent visitation under Domestic Relations Law §72(1), must undertake a two-part inquiry:

  • First, it must determine whether the grandparent has a standing to petition for visitation rights based on the death of a parent or equitable circumstances.
  • Second, if the court concludes that the grandparent has established the right to be heard, then it must determine if visitation is in the best interests of the child.

In general, the court should not lightly intrude on the family relationship against a fit parent's wishes. It is strongly presumed that a fit parent's decisions are in the child's best interests.

Best Interests of the Child or ChildrenBest Interests of the Child or Children

Included in the factors that the Courts considered are whether the grandchild and grandparent(s) have enjoyed a long-standing or pre-existing association; whether the grandchildren’s relations with the parents are supported or undermined by the grandparent(s); and if there exists any hostility between the grandparent(s) and the children’s parents.

The rancorous or bitter relationship alone between the children’s parents and grandparents is not sufficient grounds for the Court to determine if grandparents’ visits are in the child's best interests. In NY State, the grandparents may get rights to visitation even if the nuclear family is still together or the parents of the child or children are not deceased.

The grandparents are lawfully entitled to a fair inquiry in which the issue is to be resolved. However, affection and love for the grandchildren, alleged by the grandparents is not sufficient. First and foremost, they need to establish an existing and ample bond with the grandchildren or ample efforts shown to establish such a relationship.

Contact the law office of Ingrid Gherman

If you want to know more about what grandparent custody and visitation rights, contact divorce and matrimonial attorney Ingrid Gherman to arrange a consultation (212) 941-0767 or send the on-line form.

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