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Friday, May 9, 2014

Grandparent Visitation Rights in Brooklyn Not a Given

The relationships shared with grandparents can have a positive and profound impact on the life of a child. This is something that the courts recognize in cases where grandparents seek visitation rights with the children. However, a court's response may be greatly tempered by the 2000 U.S. Supreme Court ruling in Troxel v. Granville, which essentially asserts that a fit parent will act in the best interests of the child, and therefore his or her wishes must be given special weight.

Still, it is heartbreaking for the grandparent of a beloved child to be told they are no longer welcome to spend time with the child. This is particularly true if you were heavily involved in the child's life prior to that point. If it's at all possible to resolve the case out-of-court, that's the most desirable option. Still, Brooklyn family law attorneys know in some cases, grandparents - and other relatives - can successfully seek court-ordered visitation rights, where the court deems it in the best interest of the child.

A number of recent cases illustrate this, including Eaton v. Paradis, reviewed by the Maine Supreme Judicial Court, In re S.B., reviewed by the North Dakota Supreme Court and Kulbacki v. Michael, also reviewed by the North Dakota Supreme Court.

In the Eaton case, the parental grandmother sought de facto parental rights to her son's children, who had lived with her for a time, after the mother regained custody. The children initially lived with their mother, but she asked the children's paternal grandmother if she could take them for a while, as she was being abused by her boyfriend. The children's father was also living at the residence, and three months later, sought to obtain sole custody of the children due to ongoing domestic violence issues. The court granted the motion, allowing the mother supervised visits.

Three years later, the mother sought primary custody of the children, alleging that the children were living solely with their grandmother, not their father, and that she was being denied visitation with the children. The grandmother responded with a petition for de facto parental rights of the children, which her son supported.

The grandmother presented evidence that they had lived with her most of their lives. She took them to counseling, medical and dental appointments. Their mother rarely visited, but they sometimes stayed with their father. The mother presented evidence that she had married (to a non-abuser), and she and her husband were both employed. She conceded that for a time, she suffered abuse and drug addiction, and she sought the grandmother's help for the safety of the children. However, she said she never relinquished her parenting role, and the children call her "Mommy."

The trial court denied the grandmother's request, finding that while she had a "parent-like" relationship with the kids, neither the children nor parents had acknowledged her as a parent, which is a criteria Maine courts require in these cases.

The grandmother appealed. The state supreme court vacated the earlier ruling, pointing to new state case law that further outlined de facto parenthood. The court ordered the case remanded and reviewed in light of the new standard.

In re S.B., an unmarried couple with three children appealed an order granting grandparent visitation of their children with their paternal grandparents. The grandparents asserted that it was in the best interests of the children and would not interfere with their parental relationship. The grandmother testified that she was extremely close to the oldest child and had a strong relationship to the second. The third child the grandparents did not know as well because she was born at a time when the grandparents had a falling out with the parents.

The parents testified that the children were not suffering from lack of visiting their grandparents, and that the relationship is filled with tension, which creates a negative environment for the kids.

The court responded by granting extensive grandparent visitation. Later, the grandparents filed an order of contempt against the parents for failure to comply. The court found the parents in contempt, but instead of sanctioning them, modified the order to allow for less visitation.

Upon appeal, the court ruled the visitation order to be reversed and reconsidered in light of the standard that gives special weight to the wishes of the parents.

In Kulbacki, a mother appealed a final divorce decree that included a provision to grant her abusive ex-husband's mother with regular visitation of the children. The state supreme court did end up reversing that decision on the basis that the trial court had unduly placed the burden on the mother to prove that the grandparent visitation order was not in the best interest of the child, as opposed to placing the burden on the grandparent to prove why it was.

These cases are some of the most complex in family court, and the laws that govern the courts on these matters are relatively new. Grandparents pursuing visitation rights - or parents trying to block them - need to consult with an experienced law firm.

If you are seeking grandparent visitation rights in Brooklyn, call our offices at (718) 864-2011.


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