To Grandmother’s House We Go!: Grandparent Visitation Rights in New York

“What children need most are the essentials that grandparents provide in abundance.  They give unconditional love, kindness, patience, humor, comfort, lessons in life.  And, most importantly, cookies.”  – Rudolph Giuliani

In today’s society, as more mothers and fathers enter the workforce full time, it is often the grandparents who take on the primary caregiver role.  Under normal circumstances, the parents are eager and appreciative of the help grandparents are willing to give.  However, in the unfortunate event of the death of one parent or divorce, the relationship between parent and grandparent may become strained.  In such situations, grandparents question what rights they have with respect to continuing visitation with their grandchildren.

Consider this example:  Mary and Steve were married with two children.  The family always visited with Steve’s parents on Sunday afternoons.  Unexpectedly, Steve died from a heart attack.  Mary stopped visiting with Steve’s parents on Sunday’s like they did when Steve was alive.  Distraught over the loss of their son and the lack of contact they’ve had with their grandchildren, Steve’s parents file suit in court seeking visitation with their grandchildren.  How will the court rule?

In New York, under Domestic Relations Law §72, grandparents have standing to petition for visitation or custody rights where either or both of the parents of a minor child, residing within the state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene.  Generally, the courts will look to the best interests of the children when considering a visitation petition brought by grandparents.  However, there is a strong presumption that a fit parent’s decisions are in the child’s best interests and courts should not lightly intrude on the family relationship against a fit parent’s wishes.  Thus, a grandparent must show there is an established, strong relationship with the child and that it would be in the “best interest” of the child to continue to maintain the relationship with his or her grandparents.

The seminal case of grandparent visitation is Troxel v. Granville where the United States Supreme Court upheld the mother’s fundamental right to make decisions concerning the care, custody, and control of her children.  In this case, after the death of her husband, Granville restricted the grandparents’ visitation to one short visit per month and special holidays (whereas the Troxel’s were desirous of two weekends per month and two weeks over the summer).  In ruling for the mother, Granville, the Supreme Court wrote, “Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”

Though the United States Supreme Court ruled in favor of the mother, New York Courts have recognized grandparents’ rights in special circumstances.  In the New York case E.S. v. P.D., after the mother was diagnosed with cancer, the grandmother moved into the marital residence to help care for the child.  When the mother died, the grandmother remained living with child and father for 3 ½ years.  Subsequently, the relationship between father and grandmother became strained, father asked grandmother to leave and allowed only sporadic contact between grandmother and grandson.    The court noted that while it is presumed that the natural parent is acting in the best interests of the child, the grandmother in this case proved that it was in the best interests of the child to maintain visitation.  The court recognized that from the time the child was almost four until he was seven, the grandmother was his surrogate, live-in mother. The court then went on to consider all of the many circumstances bearing upon whether it was in the child’s best interest for his relationship with grandmother to continue–e.g., the reasonableness of father’s objections to grandmother’s access to the child, her caregiving skills and  attitude toward father, the law guardian’s assessment, the child’s wishes–before making a judgment granting visitation.  

If both parents are alive and grandparent visitation is denied because of a divorce, the court will examine the parties’ behavior considering what, if anything, have the grandparents done to be deserving or undeserving of court intervention, and what is the basis of parental objections to visitation?   According to a New York Court in Smolen v. Smolen, “when both parents are living, standing is conferred to grandparents only when there are special factors which make court intrusion into family autonomy appropriate, i.e., where there is possible harm to the child, or where the parental decision-making is based on factors which are immaterial to the child’s best interest. Only after standing is conferred does the court have authority to turn to the second part of the analysis and possibly award visitation in the child’s best interest. In recent decisions, that has seldom happened because the courts have recognized that deference to family autonomy is an important consideration in all aspects of the analysis.”

If you are a grandparent looking to maintain visitation with your grandchildren, the Law Offices of Jay D. Raxenberg can help!  Contact Long Island Family Law Attorney Jay D. Raxenberg and schedule a complementary consultation today.