Grandparent Rights Part 1: Visitation

Often one of the more forgotten victims of divorce can be the grandparents of the children, and so this informational is dedicated to Grandparent Rights Part 1: Visitation. Many times a grandmother or grandfather will find themselves without access to their grandchildren, because the grandparent’s own child has gotten a divorce and their spouse has custody. The grandparents love and miss the children, but suddenly find themselves on the outside looking in when it comes to their grandchildren’s lives.

Outside of seeing the grandchildren when their child, the parent, has visitation, what recourse does the law in New York allow for visitation by the parents of the parents?

Unfortunately, the answer is not much. There is no mandatory visitation allowed for grandparents in the State of New York, even if they have done nothing but care for and love their grandchildren. A grandparent can attempt to petition for visitation in Family Court, but they face a tall task in winning such a petition.

The Court performs a two-part test when a grandparent petitions for visitation. The first test is to determine whether or not a grandparent has standing to bring the action in the first place. The second part is whether or not granting visitation would be in the best interests of the child.

The standing threshold is an extremely high one and often times is not reached. The issue of standing involves whether the grandparent even has the legal right to petition to the Court for visitation. The Court will consider the nature and extent of the relationship between the grandparent and grandchild and the nature and basis of either parent’s objections to the grandparent’s visitation, among other factors. Standing must still be established even if a parent of the child, the child of the grandparents, has deceased.

If the grandparent can establish a set of extraordinary circumstances in which they could have standing to bring the petition, they would still need to show that visitation with the grandparent would be in the best interests of the child. While this may seem like a low bar to pass, it can actually be quite an impediment. The court has broad discretion in determining the best interests of a child and they get to decide if in the eyes of the Court based on the evidence, visiting a grandparent may ultimately not be in the best interests of the child.

One of the hardest factors in achieving this is that the burden is on the grandparent to prove that the child would be better off spending time with them than not seeing them. The court may determine how much weight to give the grandparent’s argument that the grandchild will be better off having a relationship with the grandparent than the current status quo of not seeing them, which can be fairly subjective. A factor that the Court may consider is whether the grandparent exercises the “ability” to see their grandchild when the situation presents itself like a public event. If a grandparent can go to a public event to see their grandchild i.e. school play, athletic event etc, and does not do so, that could be a factor weighing against grandparent visitation.

In the end, a grandparent is often better off working with the parent or parents directly rather than seeking court intervention when it comes to visitation with their grandchildren. The Court will allow any visitation agreement agreed to by both the parents and grandparents to be utilized, provided there are no extraordinary circumstances that would make such an agreement void.

 

“Grandparent Rights Part 1: Visitation” was written by Michael B. Schulman, Managing Attorney.