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.
In New York, grandparents have the right to ask the court for visitation or, in exceptional cases, custody of their grandchildren.
First Step - “Standing”
In New York, grandparents have the right to petition the court for visitation or custody as long as they have “standing” to do so. “Standing” basically refers to the fact that certain requirements must be met before an individual can bring an action in court. In the case of a grandparent’s request for visitation or custody, a grandparent has standing if:
- either or both of the child's parents are deceased, or
- other extraordinary circumstances justify the court's decision to intervene and hear the matter.
These circumstances do not necessarily give grandparents the right to visitation; they only give a grandparent the right to proceed in court.
What are some examples of “extraordinary circumstances?”
The most common example is an “extended disruption of custody,” which is defined as:
- a parent voluntarily relinquished care and control of his/her child to the petitioner grandparent(s)
- as a result, the parent has been separated from his or her child for a period of at least twenty-four continuous months, and
- the child resided in the household of the petitioner grandparent(s) during this period.
Extraordinary circumstances might also include a parent's abandonment of the child or physical or mental unfitness as a parent.
Second Step - the “Best Interests of the Child”
Once the court concludes that one of these circumstances exists, the grandparents may proceed with their request for visitation or custody. The court must first make sure that the parent (or other person with custody of the child) receives notice of the action. Then, the court must consider whether allowing visitation rights or granting custody 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.
Courts will consider these requests very carefully as they have the difficult task of weighing the benefits of having a grandparent in a child’s life, against the wishes of the parent. Courts must give special weight to the wishes of a fit parent, and if those wishes do not include visiting with the child’s grandparents, it may be very difficult for a grandparent to overcome those wishes in court.
Although animosity between a grandparent and the child’s parent will not necessarily preclude visitation, visitation should be denied if it would be harmful to the child. Thus, in one case, a court denied a grandmother’s request for visitation where the grandmother suffered from a mental disorder, was aggressive toward the parents, and sought visitation merely as a way to vent her hostility toward her own child.
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.
For the full text of the statute governing grandparents' requests for visitation and custody, see NY DRL § 72.