The New York Domestic Relations Law §72 states that in cases where either or both parents of a minor child, residing in New York are deceased, or where certain circumstances show that the court must intervene, the grandparent(s) of may apply to the NY Supreme Court or the Family Court for visitation with the subject child.
The underlying principle of the statute is based on the humanitarian concern that visits with a grandparent are often a precious part of a child's experience and the grandchildren have significant benefits from visits with grandparents; benefits which children cannot have from any other relationship.
The law does not create an absolute or automatic right of visitation. The statute instead gives a mechanism for a procedure for grandparents to acquire standing to seek visitation with a minor grandchild.When grandparents request visitation
When grandparents seek visitation under the law the court must undertake a two- part inquiry, which is described as follows: The court must first find that the grandparents have “standing” based on death of the child parent(s) or based upon “equitable circumstances.” If the court concludes that grandparent(s) has established the right to be heard, then the court will decide if the grandparent(s)’ visitation is in the best interests of the grandchild.
Standing for Grandparent in determining Visitation Rights
In considering whether the grandparent has “standing” to petition for visitation rights, an essential part of the court’s analysis is:
(1) the nature and extent of the grandparent-grandchild relationship; andWhen grandparent’s relationship with grandchildren is not favored by parents
(2) the nature and basis of the parents' objection to visitation.
In cases where the grandparents’ relationship is frustrated by the child’s parent(s), the grandparents are required to make a sufficient effort to establish such a relationship with the grandchild, so that the court perceives it as one deserving the court's intervention.
The New York Supreme Court and the Family Court will determine whether or not the grandparents are making sufficient efforts to visit with the grandchild, based upon the efforts that the grandparents could reasonably do under the circumstances of each case. This means that the grandparents must demonstrate what efforts they are making to reach out to the child’s parents, requesting to visit with the child, despite the parent(s)’ refusal to allow such visits.Best Interests of the Children
Upon demonstrating to the court “standing to seek visitation” a grandparent must then establish that visitation is in the best interests of the grandchild. Among the factors to be considered are:
a. whether grandparent(s) and grandchild have a pre-existing relationship;
b. whether grandparent(s) supports/undermines a grandchild's relationship with parents
c. whether there is any animosity between the child’s parents and the grandparent(s).
The acrimonious relationship between grandparents and the child’s parents is not a sufficient basis upon which the Court determines whether or not visitation with the grandparents is in the child's best interests. In New York State, grandparents may obtain visitation rights even though the child’s parent is not deceased and the nuclear family is intact.
Under the law, the grandparents are entitled to a full and fair hearing to resolve the issue. It is not sufficient that the grandparents allege love and affection for their grandchild. They must first establish an ample existing relationship with the grandchild or in cases where that has been frustrated by the child’s parents, a sufficient effort to establish such a relationship in order that the court see it as one deserving the court's intervention.Consult a family law attorney
If you are a grandparent or want to know what grandparent visitation rights might be in your current family circumstance, contact family law attorney Ingrid Gherman to set up a consultation (212) 941-0767 or send in the on-line form.