The Question: Despite a strained relationship with my daughter-in-law Jane, I have cared for my grandson in my home three days a week since he was born 5 years ago. My son died tragically a few months ago. Jane made new arrangements for my grandson’s care and will no longer allow me to see him. What rights do I have as a grandparent to see my grandson?

The Answer: Luckily for you, New York has a Grandparent Visitation Statute (Domestic Relations Law §72) designed to protect the interests of grandparents who have fostered a meaningful relationship with their grandchildren. In fact, because the New York statute does not require the grandparent to prove the existence of special factors and does not afford fit parents certain protections, some argue that the statute unfairly infringes upon the rights of parents to make child-rearing decisions.

How it Works: When a parent of a minor child dies, or where fairness dictates continued access by a grandparent to a grandchild, a grandparent who is denied access may petition the court for visitation rights. After notice to the surviving parent or guardian of the minor child, the court will conduct a hearing and will apply a two-prong test to determine if the grandparent’s request will be granted.

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. Factors considered by the court include but are not limited to the quantity and quality of time the grandparent has spent with the grandchild. Grandparents who have not played a significant role in the lives of their grandchild and who have had very little contact with their grandchild will likely be found to not have standing. If that case, the petition will be dismissed. If, however, the court finds that the grandparent has standing based upon a meaningful relationship with the grandchild, a hearing will be conducted 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. Sometimes the court will entertain testimony from other people who have personal knowledge of the relationship between the grandparent and the grandchild. If the court is convinced that the grandchild will suffer if visitation is denied, it 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.

While courts are 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 that visitation is not in their child’s best interest. In other words, under the New York statute, there is no presumption that decisions made by a fit parent are in their child’s best interest. Even absent allegations that a parent is unfit, the court may grant visitation against the parent’s wishes. 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 of the grandchild. Resorting to litigation not only introduces uncertainty, but the emotional cost to the parties, including the grandchild, may be significant.

This article first appeared in the July 21, 2011 issue of the Times Beacon Record Newspapers.

 
Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket, New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business services and litigation.