The relationship between a grandparent and a grandchild is often deeply enriching for both adult and child. For a child, a grandparent can be a source of unconditional love and treasured memories. For a grandparent, their grandchild is a source of joy, pride, and connection with the future.
Unfortunately, not all grandparents and grandchildren have the opportunity to build a loving bond with one another. For various reasons, the child’s parent or parent may decide to limit or sever the child’s contact with their grandparent. Does a grandparent have the right to seek visitation with a grandchild, or custody of a grandchild, in New York State?
The answer is yes, but there are certain conditions that must be met for a grandparent to get visitation or custody of a grandchild over the objection of the grandchild’s parent.
Grandparent visitation rights are governed by §72 of New York State’s Domestic Relations Law. Whether a grandparent has legal standing to seek visitation with a grandchild depends on whether both of the child’s parents are still living.
As a general rule, parents have the right to decide who will see and spend time with their child. If both parents are alive, a grandparent’s standing to seek visitation depends on the history of the relationship between the grandparent and grandchild, including:
In general, the longer and stronger the historical relationship between a grandparent and grandchild, the more likely a court will permit the grandparent to petition for visitation. The court will grant visitation with a grandparent if doing so is in a child’s best interest.
If one or both of the child’s parents are deceased, it is typically easier for a grandparent to pursue visitation; they need only show that visitation would be in the child’s best interest.
A parent’s right to direct the care, custody and control of their child is well-established as a Constitutional right by the U.S. Supreme Court. However,§72 of New York State’s Domestic Relations Law was recently amended to allow grandparents to seek custody in extraordinary circumstances. In the case of Bennett v. Jeffreys, 40 N.Y. 2d543, 387 N.Y.S. 2d 821 (1976) New York State Court of Appeals affirmed the importance of parental custody rights against third parties, but also acknowledged that there are some extraordinary circumstances in which it may be appropriate for a grandparent to assume custody.
The Bennett court stated that “...neither decisional rule nor statute can displace a fit parent because someone else could do a "better job" of raising the child in the view of the court (or the Legislature), so long as the parent or parents have not forfeited their "rights" by surrender, abandonment, unfitness, persisting neglect or other extraordinary circumstance.” In other words, even if the court thinks a grandparent could do a better job of raising a child, the court will not remove custody from the parent unless they are unfit, persistently neglectful, or have abandoned the child.
If there is an extraordinary circumstance that would make it appropriate to disturb the parent’s custody rights, a grandparent seeking custody must then show that it would be in the child’s best interest for the grandparent to have custody.
As a grandparent, seeking visitation or custody of your grandchild can be an uphill battle. In order to prevail, you need to be represented not only by a New York family law attorney, but one with extensive litigation experience. Similarly, if you are a parent whose rights are being challenged by your child’s grandparent, you need a strong, capable attorney to protect those rights.
Your relationship with your grandchild is irreplaceable, so effective representation is of the utmost importance. It’s possible that your custody or visitation case could be settled before trial, as most family law disputes are. However, because most divorce, visitation, and custody cases settle, many attorneys who practice only in the area of family law have little trial experience.
The team at The Law Offices of Andreas Vasilatos, PLLC is different. Our attorneys have extensive courtroom experience, including in grandparents’ rights issues. Attorney Andreas Vasilatos is highly respected, and has been retained by other attorneys for their own matrimonial and custody cases.
The Law Offices of Andreas Vasilatos, PLLC has two convenient locations: in Bayside, Queen, and at 7 World Trade Center in Manhattan. The firm serves clients in all five boroughs of New York City as well as Nassau, Suffolk, and Westchester Counties. We invite you to learn more about our firm and our team, and to contact us to schedule a consultation. We look forward to working with you.