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Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.

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Do grandparents have visitation rights in New York
September 24, 2018

 

GRANDPARENT VISITATION IS WITHIN THE SOLE DISCRETION OF THE COURT WHERE NO PARENTS HAVE DIES IN THIS CASE

 


Under certain circumstances the court in a divorce or family court case may, in its sole discretion, allow a grandparent standing to sue for grandparent visitation under certain circumstances.  In other words, the Court may provide for the reasonable visitation rights of the maternal and/or paternal grandparents of any child in circumstances where either or both of the parents of a minor child residing within New York State is or are deceased, or where circumstances show that compelling conditions exist which equity would see fit to intervene.  Thus, and pursuant to law only under those above circumstances may a grandparent or the grandparents of the child apply to the supreme court to be heard on the issue of grandparent visitation by starting a proceeding or by filing for a writ of habeas corpus.  After appropriate notice to the parent having the primary custody, and control of the child, the court may make such orders as furthers the best interest of the child as to grandparent visitation rights. However, the statute merely gives a grandparent standing to sue for visitation if the court finds cause as stated above, and does not presuppose an ultimate right. Rather, even if the court determines the grandparent has standing, the above statute provides that a parent’s decision with respect to grandparent visitation is given presumptive weight such that a grandparent only has standing to sue for visitation when one of the child’s parent has died or when equitable conditions persist and compel judicial intervention in the best interest of the child.
            Thus, a trial court must not presuppose that visitation with a grandparent is warranted but rather must first be concerned with a parent’s wishes as to the issue and thus providing great weight to the strong presumption that the parent’s wishes control.  After that, the Court may consider several other factors in deciding whether it was in the best interests of the child to award grandparent visitation. Some of these considerations would be the attorney for the child’s position, the wishes of the concerned subject child, the reasonableness of the parent’s position against visitation with the grandparent, and other such conditions that would be in furtherance or lack of furtherance to the best interests of the subject child. To conclude, only the death of a minor child’s parent gives automatic standing to sue for grandparent visitation.

          In a Second Department case in New York the court held that the grandfather lacked standing to petition for visitation where the children's mother had never frustrated his visitation. There, the court found that Grandfather lacked standing to petition for visitation with his grandchildren, since the children's mother had never frustrated his visitation with them ab initio; rather the mother merely set forth the conditions of the visitation with the grandfather by asking the grandfather to not bring the grandmother along on the visit. Moreover, in another case called Ordona v. Campbell the court held that grandparent visitation needed to be terminated where the grandmother had failed to obey court orders and exhibited a strong animosity toward the Father and the grandmother tried to undermine the father’s relationship with the child.  

          That said, this should not discourage a grandparent from filing for visitation if the parents are both denying contact with the child after you have formed a positive and substantial bond with the child.  This precept was demonstrated in an interesting New York Third Department case of Monroe v. Monroe, decided in 2017. There,  the court suggested that Grandparents would have the right and standing to bring a petition for visitation if they could establish that they have a long substantive existing relationship with the grandchildren, or in cases where the parents are frustrating their contact with their grandkids. On those facts a court can likely intervene in the interests of the best interests of the child.   

          Moreover, in another Second Department case in New York the court held that a grandmother had standing to ask for visits with the grandkids where she showed the court that she had a long-standing relationship with the child and where the child's father unexpectedly died.

The lesson to be learned here is that while grandparents do not always have automatic standing to sue for visitation, where equity permits and you can prove your relationship should be continued in the child’s best interests the court might grant it.

 

By: Your Manhattan Custody Lawyer Lisa Beth Older