One of the most heart-wrenching aspects of a divorce is the strain it can put on familial relationships outside the immediate family unit. At a time when children may most need the love and support of extended family, their access may be restricted due to turmoil between spouses in an acrimonious split.
Our Brooklyn family law attorneys often receive questions regarding child visitation from extended family members, such as grandparents, aunts, uncles and great-grandparents. In general, New York is rather restrictive on this matter. Family courts have generally limited the rights of grandparents to visit their grandchildren, instead holding more firmly to the fundamental right of the parent to raise the child as they see fit. That fundamental right includes restrictions on who the children may visit.
However, there are sometimes exceptions, usually when one parent is deceased and the surviving parent has created distance. Strong cases might also be made when parents are teenagers, unable to fully support themselves. Even then, the court will consider the previous relationship of the grandparent and child and whether such visits would be in the child's best interest. While some courts have held firmly that extended family members may not seek visitation rights, exceptions have been made for grandparents when it was in the child's best interests.
In considering those "bests interests," the court will weigh the child's wishes, the physical and emotional needs of the child, the motivation of the parent who is limiting contact, the parents' morality, the parents' past behavior and conduct, the home environment and potential educational opportunities afforded by the grandparents.
A recent case out of California, reviewed by an appellate court in Los Angeles, illustrates how such an order might work. Although family laws vary from state-to-state, it's not impossible that a similar scenario might unfold here. In the case of In re J.T., the California Court of Appeal for the Second District, Division Eight, upheld the earlier-granted grandparent visitation rights.
According to court records, the mother was 16 and the child one-year-old when the juvenile court asserted dependency jurisdiction over the baby. The mother, too, was considered a dependent of the juvenile court. Evidence presented showed the mother had left the baby with her mother without making appropriate plans for his care, and without informing her mother of where she would be.
The court found the mother failed to consistently maintain a residence with her mother, and frequently left with the child without informing anyone of where they would be or when they would return, and without permitting a social worker sufficient access to the child.
Then, for several time periods - one lasting two years - the boy was placed with his paternal grandmother. Although the mother partially completed a reunification plan, her efforts were inconsistent. However, eventually, the court found she had completed enough of the requirements, and granted the mother custody of the boy.
At this point, the paternal grandmother sought visitation. She was granted unmonitored, overnight visits with the boy. The grandmother would later complain the mother was not making the child available for visitation. The mother responded she did not want the child to visit his paternal grandmother, and vowed to fight the order.
At a hearing, the mother said she did not have a good relationship with the grandmother, who she claimed made false allegations against her and interfered with her relationship with her son.
The agency overseeing child welfare testified on behalf of the grandmother, noting no false allegations had been made and pointing out the grandmother had done a good job of raising the boy most of his life up to that point.
The court ordered unmonitored, overnight visitation, with a review of the issue slated for the following year.
An appeal followed, with the mother arguing the mandatory visitation was a violation of her 14th Amendment rights to parent her child.
However, the appellate court found it would disrupt the child's stability to deprive him of contact with his paternal grandmother, with whom he had a very strong bond. Finding it in the best interests of the child, the appellate court affirmed.
If you are dealing with child custody or visitation issues in Brooklyn, call our offices at (718) 864-2011.
In re J.T., Aug. 7, 2014, California Court of Appeal for the Second District, Division Eight
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