In New York, grandparents have the right to ask the court for visitation with their grandchildren. In exceptional cases, grandparents may even ask the court to award them custody of a grandchild.
This article explains grandparent custody and visitation rights in New York. For all of our articles on New York family law issues, see our New York Divorce and Family Law page.
Grandparent Visitation Rights
New York law gives grandparents the right to petition the court for visitation rights with a grandchild if:
- either or both of the child's parents are dead, or
- circumstances justify the court's equitable intervention.
These circumstances do not necessarily give grandparents the right to visitation; they only give grandparents the right to ask the court for visitation. In legal terms, a grandparent has "standing" to ask the court for visitation only if one of these prerequisites is met. Once the court concludes that one of these circumstances exists, the court must consider whether allowing visitation rights to the grandparents would be in the best interests of the child. The grandparents have the burden of proving that visitation would be in the child's best interests, based on factors such as the child's wishes, the child's prior relationship with the grandparents, the reasons why the parent opposes visitation, and so on.
In 2000, the U.S. Supreme Court struck down a Washington grandparents' rights law that allowed the state's courts to award grandparent visitation whenever it was in the best interests of the child, regardless of the parent's wishes, unless the parent can show that it would not be in the child's interests to allow visitation. The court found that this statute violated the parents' right to due process in making decisions about how to raise their children. In keeping with this ruling, courts in New York must give special deference to a parent's determinations about visitation. This doesn't mean the courts must deny grandparent visitation whenever a parent opposed it; after all, the issue wouldn't be in court if everyone could reach an agreement on their own. However, the courts are required to step lightly in countermanding the judgment of a fit parent.
Grandparent Custody
A grandparent who can show that "extraordinary circumstances" exist may petition the court for custody of a grandchild. Again, the extraordinary circumstances don't give the grandparent a right to custody; they only give the grandparent a right to ask the court for custody. If the court finds that there are extraordinary circumstances, the court will determine custody based on the best interests of the child.
Extraordinary circumstances include an extended disruption of custody, defined as at least two consecutive years during which the parent has voluntarily relinquished the care and control of the child, and the child has lived with the grandparent. They might also include a parent's abandonment of the child or physical or mental unfitness as a parent.
Getting Legal Help
If you are a grandparent interested in seeking visitation or custody rights to a grandchild, you should consult with an experienced family lawyer. Unless you and the child's parents can come to an agreement, you will have to prove to the court that you should be allowed to see or care for the child, despite the parent's objections. Courts are constitutionally required to give special weight to a fit parent's decisions about raising a child. An experienced lawyer can help you assess your chances in court and assist you in preparing the best possible case for seeing your grandchildren.
