Grandparent's Rights in New York

New York’s legal system values a child’s connection to both maternal and paternal family members. While children are generally able to maintain those connections through their respective parents, there are certain circumstances that simply do not allow for those bonds to be preserved. In order to help sustain those relationships, the New York Family Court Act and Domestic Relations Laws provide certain rights for grandparents regarding custody and visitation of their grandchildren. 

A grandparent who seeks to request custody or visitation must reside in the State of New York and must have a valid reason for petitioning the court. If the grandparent meets those initial requirements, the Judge or jurist must then determine that it is, in fact,  in the child or children’s best interest. 

Visitation

Grandparent visitation is not meant to take place alongside normal parenting-time with two involved parents. Instead, it provides relief for grandparents that are not able to see their grandchildren under normal circumstances. If the court finds that a grandparent has grounds for filing a visitation petition a Judge or jurist will agree to hear the case. Then, it will be up to the parties to present whether or not it is in the child or children’s best interest for a visitation order to be granted. 

Where Are Grandparent’s Applications Filed? 

Applications made by grandparents are generally filed in the Family Court located in the county where the child or children reside. 

What Are Grounds for a Grandparent’s Visitation Petition?

A grandparent has an automatic right to file a petition for visitation if his or her child (the parent of the grandchildren) is deceased. Otherwise, a grandparent must show that it would be in the interest of equity that a visitation schedule be considered. 

What Does “Interest of Equity” Mean? 

By definition, equity means fair and impartial. Where a grandparent presents an argument that court-ordered visitation schedule would be fair under his or her specific set of circumstances, the court will consider an application. The court wants to give children the opportunity to maintain familial relationships where the same cannot or is not being provided by a parent directly. For example, if a parent is incarcerated or has limited contact with the child or children, the court may determine a grandparent’s visitation schedule would be equitable. 

What Does the Court Consider to Determine “Best Interest?”

In determining whether a grandparent’s visitation schedule is in the best interest of child or children a Judge or jurist will consider the wishes of both parents, to the extent they are both alive. If both parents oppose the visits, the court will consider this in weighing the best interest standard. However, where only one parent opposes the visitation, the court will move forward in considering other relevant factors. Next, the Judge or jurist will look at whether there has been a consistent and ongoing relationship between grandparent and grandchild. Depending upon the age and maturity of the child or children, the court may also appoint an attorney for the child to interview the child(ren) and present their perspective on those visits to the court. 

What Does a Visitation Schedule with a Grandparent Look Like? 

A grandparent’s visitation schedule is usually not as extensive as a parent’s schedule. Whereas a parent may be granted alternate weekends or more, as well as daily phone contact, a grandparent is likely to receive visitation one or two days per month and weekly phone communication, unless the child or children desires more. 

Custody and/or Guardianship

While grandparent’s visitation may be liberally granted, applying for custody or guardianship over a child as a grandparent is more complex. A grandparent may obtain custody or guardianship over his or her grandchild(ren) on consent of both parents, or on consent of the one living parent. Absent consent, the grandparent must show some “extraordinary circumstances.” 

What is Considered an Extraordinary Circumstance? 

The death of both parents would signify a legitimate reason for a grandparent to petition the court for custody or guardianship over his or her grandchild(ren). In the event that one or both of the parents remained living, a parent has a constitutional right to raise his or her child(ren). However, an extended disruption of custody would also give a grandparent the right to petition for custody or guardianship. For example, if the custodial parent passes away and the non-custodial parent has not had contact with the child(ren) for a period of at least one year, the grandparent may then have the right to obtain custody. Another example may be where the child or children are placed in foster care for a period of two years, a grandparent may then petition the court to obtain custody. 

Just as with grandparent’s visitation, once a grandparent establishes grounds to apply for custody or guardianship, he or she will then be tasked with showing that such a custody arrangement would be in the best interest of the child(ren). 

Each circumstance is unique. If you are considering filing an application with the court for grandparent’s rights, speaking with an attorney can help you determine the court’s likely perspective. If you have questions, please feel free to contact me for a free consultation. Appointments can be made by phone or directly on my website at your convenience.