Legally Speaking: The rights of a grandparent

By Linda Toga, Esq.

THE FACTS: Since my grandchildren, twin boys, were born seven years ago, I have cared for them five days a week while my daughter and son-in-law worked. My daughter is in the process of a divorce and my son-in-law will likely have shared custody. He is threatening to prohibit me from seeing the boys.

THE QUESTION: What rights do I have as a grandparent to see my grandchildren?

THE ANSWER: Since you have clearly been a big part of your grandchildren’s lives up to this point and have developed a meaningful relationship with the boys as a result of the extensive time you’ve spent caring for them, your interest in having a continued relationship with your grandchildren is protected by the New York Grandparent Visitation Statute (Domestic Relations Law §72).

The statute is designed to protect the interests of grandparents who have fostered a deep and significant relationship with their grandchildren. Unlike some similar statutes in other states, the New York statute does not require the grandparent to prove the existence of special factors in order to maintain visitation rights. In fact, some argue that the statute is too “grandparent friendly” and that it unfairly infringes upon the rights of fit and loving parents to make important child-rearing decisions.

HOW IT WORKS: When fairness dictates continued access by a grandparent to a grandchild, a grandparent who is denied access to that grandchild may petition the court for visitation rights. Notice of the petition must be given to the parent(s) or guardian(s) of the minor child who is advised of the date on which the court will conduct a hearing to determine if the grandparent’s request will be granted.

The court engages a two-prong test when deciding a grandparent visitation case. The first question the court must answer is whether the grandparent has “standing” to seek visitation. In other words, the court must determine if the grandparent has developed a relationship with the grandchild that deserves protection.

There are many factors considered by the court including the quantity and quality of time the grandparent has spent with the grandchild. A grandparent who has not played a significant role in the life of her grandchild and who has had very little contact with her grandchild will likely be found to not have standing. If that case, the petition will be dismissed.

Based upon the facts you’ve provided, it is likely that the court would find that you have standing. Once standing is found, the court will conduct a hearing to determine if grandparent visitation is in the best interest of the grandchild.

Based on testimony from the grandparent, the parent and either the grandchild or an attorney appointed by the court to represent the grandchild’s interests, the court must decide if denying grandparent visitation will adversely impact the grandchild. It is helpful to the grandparent’s position if there are other people with personal knowledge of the relationship between the grandparent and the grandchild who are willing to testify in support of visitation.

Of course, the parent or guardian can also arrange for people to testify in opposition to visitation. If the court is convinced that the grandchild will suffer if the grandparent is denied visitation rights, the court likely will grant the grandparent’s petition stating that visitation is in the best interest of the grandchild. A visitation schedule may be ordered if the parties cannot agree to a schedule on their own. If the determination of the court is that visitation with the grandparent is not in the child’s best interest, the petition will be denied.

Although courts are generally reluctant to interfere in a parent’s fundamental right to make decisions concerning the care and custody of their child, New York courts are not required to give deference to a parent’s decision about grandparent visitation. In other words, under the New York statute, there is no presumption that decisions made by a fit parent are, in fact, in their child’s best interest.

When the grandparent-grandchild relationship is particularly strong and when the grandchild is clearly dependent on the grandparent, the court may grant visitation against the parent’s wishes even when the parent is deemed fit. Although parents’ rights groups claim that the statute is unconstitutional because there is no presumption in favor of the parent, to date New York courts have upheld the statute.

Before seeking court intervention, grandparents who are denied access to their grandchild should try to reach an agreement concerning visitation with the parent or guardian of the grandchild. Litigation introduces uncertainty to the situation and comes with a considerable emotional and financial cost to the parties. In addition, the potential harm to the grandchild as a result of being put it the middle of a dispute between his parent and his grandparent may be significant. If an agreement cannot be reached, it is best to seek the counsel of an attorney with experience in this area of the law.

Linda M. Toga, Esq. provides legal services in the areas of estate planning, probate, estate administration, litigation, wills, trusts, small business services and real estate from her East Setauket office.