Do Grandparents Have Visitation Rights in New York?

Learn what judges consider when making decisions about grandparent visitation in New York.

By , Attorney · Golden Gate University School of Law
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Are you concerned about how a divorce, separation, or parent's death will interfere with your relationship with your grandchildren? These life-altering changes in the family can impact the grandparent-grandchild relationship, especially when a surviving or custodial parent tries to limit your time together. This article explains when and how grandparents can request court-ordered visitation with their grandchildren in New York.

Do I have a legal right to grandparent visitation?

In New York, grandparents have a legal right to request court-ordered visitation when:

  • one or both parents die
  • they have a substantial existing relationship with their grandchildren, or
  • the child's parents have interfered with their efforts to establish or maintain a relationship.

This right applies only to biological or adoptive grandparents and does not extend to great-grandparents or other relatives.

What must I prove in court?

The grandparent asking for visitation has the "burden of proof" (the duty to provide sufficient evidence) to show a legal right to court-ordered time and that the proposed visits are in the child's best interests.

First, you must establish legal grounds for your request. If one or both parents die, this determination is automatic. If one or both parents are living, you must prove an existing relationship with your grandchild or demonstrate that the child's parent(s) have prevented you from establishing one.

Judges must give great weight to parental preferences regarding who gets to visit their children, balancing the parents' objections with other factors, such as the current family structure and the extent of any existing relationship. Evidence of animosity between a grandparent and parent(s) is relevant but not enough, alone, to deny a request for court-ordered time.

Once you have established legal grounds to request visits, you must show that spending time with you is in your grandchild's best interest, considering:

  • the child's age
  • the child's wishes, if he or she is mature enough to express a preference
  • the distance between the child's home and where your proposed visits will occur
  • the mental and physical health of everyone involved, including the child, his or her parents, and anyone else that may have filed for visitation or custody
  • your past and current relationship with the child and parent(s), and/or
  • your nurturing skills and attitude towards the parent(s).

The court will assign an attorney to represent the child's interests who is specially trained to present his or her wishes or speak in his or her best interests.

How do I start the process?

You must file a "petition," (formal written request) with the court in the county where your grandchild lives. In your petition, you will describe your proposed schedule for court-ordered time. Once you've filed your request, you must give notice to everyone involved, including the child's parents and anyone else that may have filed for custody.

If you already have a visitation order, but you want more time or the child's parent is preventing you from visiting, you can ask the court to "modify" (change) it, or enforce the order.

Do I have rights if my grandchild is adopted?

In New York, adoption does not cut off a biological grandparent's rights to request visitation. The primary consideration is the child's best interest, considering health, safety, and welfare, and whether your visitation request is made before, during, or after an adoption.

How do I get custody or guardianship of my grandchild?

New York courts will only consider awarding custody to a non-parent if the natural parent abandons or severely neglects the child, and the non-parent proves it would be in the child's best interests.

If you have questions about your right to spend time with your grandchild, you should speak to a local, experienced family law attorney, who can help you navigate this process.

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