In the year 2000, the United States Supreme Court ruled that the Washington State non-parent visitation statute, applied in Troxel v. Granville, is unconstitutional. The question, therefore, is does this ruling affect grandparent visitation rights in New York?

Issue Decided in Family Court

After the Supreme Court Decision in Troxel v. Granville, there was concern in New York that this state would not be allowed to continue to grant grandparent visitation under DRL Section 72 and existing case law. Would the New York courts conclude, on the basis of Troxel, that New York's law is now unconstitutional?

Grandparents can breathe more easily since two family courts in New York have held that New York's law is not covered by the Washington State decision, and that New York courts need not apply Troxel in grandparent visitation applications before it. (Smolen v. Smolen, Appellate Division Second Judicial Dept., and Fitzpatrick v. Young, Fourth Appellate Department)

The Supreme Court decision to find Washington State's Non-Parent Visitation Statute unconstitutional as applied in Troxel v. Granville, rested on the sweeping breadth of the Washington statute that allowed anyone "not just grandparents" to seek visitation, thus violating parental rights to make decisions concerning the care and control of their children. However, the Court did not state that all non-parent visitation statutes must be stricken.

New York Non-Parent Visitation Law

The law in New York is very clear. Judgment on any and all visitation claims is based strictly on the best interest of the child. How does this work?

When grandparents seek visitation rights in a situation where both of the parents are alive, the Court must first determine if the grandparents have standing to seek visitation. (Section 72, Domestic Relations Law of the State of New York) How does the Court determine whether standing exists? By checking on the history of the relationship between grandparents and child:

• Has there been regular contact?
• Have the grandparents made diligent efforts to continue regular contact with their grandchildren?
• Have the child's parents frustrated any grandparental attempt at a relationship? If so, why?

In other words, there are two major criteria. What is the nature and extent of the grandparent/grandchild relationship, and what is the nature and basis for the parents' objection to visitation by the grandparents? The answer to these two questions should enable the court to determine if grandparent visitation is in the best interest of the child(ren).