Grandparent Rights Part 2: Custody

What happens when a grandparent wants to get custody of a grandchild?  Many times, especially when young or troubled parents are involved, a grandparent will try to take custdy of their grandchildren.  The grandparents are often more financially stable and better equipped to provide for the children than their children are.  In addition, they have the experience and knowledge that might allow them to better care for a young child than the child’s actual parents.  But it takes more than that basic logic for a grandparent to win custody of their grandchild.

In New York, the parents generally always have a better claim to the custody of child than a grandparent does.  It generally takes an extraordinary set of circumstances for a grandparent to prevail when one or both parents seek custody of their child.  A few examples of dire situations that may necessitate a grandparent receiving custody include serious domestic violence issues in the home, parental drug use, child abuse or a prolonged disruption of parental custody in which the grandparents have de facto custody of the child.

If the Court determines that there are no extraordinary circumstances warranting the removal of the child from the parent’s custody, then the parent’s will retain custody of their child.  It does not matter if the grandparents are unquestionably in a better situation and better able to take care of the child.  There must be a reason to remove custody from the parents before the Court will entertain the idea of transferring custody to the grandparent.

A grandparent can petition the Court for custody but it is generally a tough battle to win if one or both the parents fight the petition, but always turns on what the Court determines is in the best interests of the child.  A Court will consider the fitness and character of the parents as well as the grandparent but usually also requires more than just the grandparent being more financially stable or able to care for the child.  A court will also consider whether the grandparents have a present or past custodial situation with the child and the bond between the grandchild and the grandparent.

However, just because the grandparent enjoyed physical custody of the child on an everyday basis for an extended period of time while the parent may have been unable to either financially or due to other reasons, even criminal circumstances will not automatically allow for a grandparent to win legal custody of the grandchild.  The fact that the child and grandparent have a deep and loving relationship is not enough either.

In December 2015, the New York Court of Appeals in Matter of Suarez v. Williams ruled that  grandparents can seek custody where their are extraordinary circumstance.   In Suarez, the Court of Appeals laid out the criteria for  “extraordinary circumstances”.   Where the child has lived with the grandparents for a prolonged period of time, in this case 24 months, during which time the parents have voluntarily relinquished care and control of the child this could qualify as an “extraordinary circumstance”.  It is important to note that the relinquishment of care and control over the child does not necessarily mean that the parent has had no contact with the child.  Instead the test merely requires that the parent fails to maintain substantial, repeated and continuous contact with the child or plan for the child’s future.  This is considered an “extended disruption of custody” so as to constitute, by statute, an extraordinary circumstance.  Seeking custody does not mean being granted custody.  This decision gives the conditions under which a grandparent can attempt to gain custody.

Sometimes the parents of a child will agree to give a grandparent legal custody, either permanently or temporarily.  This often occurs when a single parent is in the military and forced to go on an extended deployment or when a parent’s career may take them away from home regularly or for extended periods of time.  In other situations, a parent will do so as to get their own life in order, perhaps requiring substance abuse rehabilitation.  However, as long as the parents make it clear that they plan on resuming custody once the temporary event (deployment, extended business, rehab, etc.) ends, they will be allowed to retain custody when they return.

In short, the circumstances that would lead to a grandparent gaining custody over a parent are rare despite a grandparent’s love and devotion to a grandchild being extensively prevalent.  In those few cases, which illustrate the extraordinary circumstances justifying the removal of the child from a parent’s custody, a grandparent can ultimately be granted custody.


“Grandparent Rights Part 2: Custody” was written by Michael B. Schulman, Managing Attorney.

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