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Can I sue for Grandparent Visitation?
September 25, 2018
GRANDPARENT VISITATION IS WITHIN THE SOLE DISCRETION OF THE COURT WHERE NO PARENTS HAVE DIES IN THIS CASE
Grandparent visitation can be had if certain criteria are met. Thus, in New York grandparents’ rights are limited to certain circumstances where a court might grant visitation with their grandchildren. This is because the law recognizes that it is the parents and not the grandparents that have the ultimate right to raise their children as they deem fit and that this right is superior to any third party’s proclaimed right. In essence that means a court might grant you standing to apply for visitation and will perhaps award it if you can show you have a substantial meaningful relationship with the child or children such that the Court can decide that you have standing to bring the actions. Only after that determination is made may a Court move on to decide whether or not to grant visitation and will first be charged with weighing a myriad of factors to see if the court believes it is in the best interests of the children to award visitation. As an aside, and as to standing, please note that you have automatic standing to bring a petition where one or the other parent has died but, in that case, you should know that while you would have automatic standing to apply for visitation that does not necessarily mean you will automatically get it awarded to you. New York applies a variety of factors and stages before determining grandparent rights. First, the court must determine if you have standing to be in court in the first place, which requires a showing that equity dictates that the court intervene. That is usually established by showing the court the nature of your relationship and whether it is long standing and substantial and functioning. After standing is established the court will apply the best interests test that it employs in all visitation cases. Some of the factors the court considers in a best interest’s analysis is what the child desires, and the position of the attorney for the child. Other factors include the rational objections of the parents to grandparent visitation and whether it is advisable for the child to see their grandparents under certain conditions such as mental illness. Notice must be given to the parents affected before you go to court on your petition 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