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Monday, September 1, 2014

Grandparent Visitation Rights in New York

As a Brooklyn, NY based grandparent’s visitation attorney my client’s ask me can a parent deny a grandparent visitation? The answer depends upon a number of factors which shall be discussed below.

 

It is important to note that this article only deals with grandparent visitation and not grandparent custody. For a grandparent to have standing to apply for custody they must show that extraordinary circumstances exist. This is classified as a prolonged separation of the child and parent for at least 24 months where the biological parent has voluntarily relinquished care and control of the child who lived in the grandparent’s household during this period of time. 

 

The court in the Matter of E.S. vs. P.D held that visitation “rests on the humanitarian concern that [v]isits with a grandparent are often a precious part of a child's experience and there are benefits which devolve upon the grandchild ... which he cannot derive from any other relationship”

 

In order to initiate a grandparent visitation case you must file a Petition in the Family Court of the county where the child has resided for the last 6 months or more. In the Petition you will state why you want visitation, providing a narrative of your relationship with the child and your involvement in the child’s life. In order to establish a prima facie case for visitation in your Petition (what you must legally allege support a verdict in the your favor)  it is wise to hire an experienced New York Visitation attorney  to draft the petition for you so it doesn’t get dismissed. Once you filed the request the Court will issue a Summons in your case. This Summons  along with the Petition you filed must be served on the parents of the child.

 

When the case gets to  Family Court you will go before a Judge. Generally, there will be a number of conferences held before the case goes to trial. During these conferences the Court will assess the ability of the parties to settle the matter.  Temporary orders of visitation may be ordered to the grandparent. If the case can’t settle it will go to trial. During trial the grandparent asking for visitation has to present sufficient evidence (the “burden of proof”) showing they have the right to visitation.  In order to establish a right to visitation, according to the New York DRL (Domestic Relations Law) § 72(1), a grandparent must satisfy two requirements.  First of all they must show that they have standing in order to request visitation. Second of all, if a showing of standing can be made, the grandparent must show that it is in the child’s best interests for visitation to occur. This legal analysis does not extend to great grandparents or other relatives and applies only to biological or adoptive grandparents. It is important to note that the statute acknowledges the value to children of grandparent relationships but does not create an absolute or automatic right of visitation.

 

Standing

 

The Court can base standing on death of one or both of the child’s parent’s or upon equitable circumstances.  Where either parent of the grandchild has died, the grandparents have an absolute right to standing to seek visitation. Death is self explanatory but equitable circumstances takes into account a number of considerations.  Generally speaking it is what the Court deems as fair under the circumstances. To prove that it is equitable for visits to occur, a grandparent must show an existing relationship with the grandchild. An important part of the inquiry is the nature and extent of the grandparent-grandchild relationship, how involved has the grandparent been in the child’s life?  In the event that the parents have prevented visitation, and no existing relationship exists, the grandparent’s efforts in establishing visitation will be taken into account. The efforts in establishing visitation must be reasonable under the circumstances.

 

Best Interests

 

In determining best interests of the child the court will consider:

 

  • the nature and quality of the relationship between grandparent and child;
  • their ability to nurture the child;
  • their relationship with the custodial parents;
  • objections to visitation the custodial parents may have
  • the child’s preference;
  • the child’s age;
  • the distance between the child’s home and where visits will occur;
  • the mental health of all parties involved;
  • any other factors the court deems relevant in determining best interests.

 

In some situations the Court will appoint an attorney to the child so they can advocate for the child in Court.

 

The wishes of fit parents insofar as visitation is concerned will be given a lot of weight. It is  presumed that a fit parent's decisions are in the child's best interests.

 

When a parent does object to grandparent visitation the Court must consider the nature and basis of the parents' objection to visitation. Although the Court will not ignore the problems created by conflict between the parents and grandparents, a bad relationship between the parties is not a reason to deny visitation.

 

The Court's determination concerning whether to award visitation to a grandparent depends to a great extent upon its assessment of the credibility of the witnesses and upon the assessments of the character, temperament, and sincerity of the parents and grandparents.

Application of the Rule

 

In the Matter of E.S the court held that the grandmother was entitled to visitation with child despite the father's objection. Here the mother was deceased and also held that visitation was in child’s best interests. The Court cited that the grandmother  lived with child and father and cared for child as surrogate mother for over three years following mother's death. The court also held that the two had a close attachment therefore being in the best interests of the child to have visitation.

 

In the Matter of Emanuel S. v. Joseph E, the Grandparents filed a petition to have visitation rights to their grandchild. Here the biological parents argued that because they (the parents) were together in a nuclear family and because they were fit parents, there was no right to visitation.   Prior to the relationship deteriorating, the grandparents visited the child for the first three months of his life but were thereafter prevented from any contact with him. They filed a petition for visitation one year after the child’s birth. This case was extensively litigated. During the proceedings the grandparents were awarded interim visitation with the child. They were granted six hours of visitation on the  second Sunday of every month. At the end of trial the court concluded that animosity between the parents and grandparents was not a sufficient enough reason to deny visitation and that visitation was in the child’s best interests.

 

Furthermore, the parents argued that since the grandparents did not have a relationship with the grandchild at the time of filing they did not have standing. The Court held that after looking at the grandparents’ efforts to obtain visitation, their efforts were reasonable under the circumstances. Here the parents frustrated the ability of the grandparents to obtain visitation by not allowing it to happen.

 

In the Matter of Joseph FITZPATRICK v Daniel FITZPATRICK the paternal grandparents were deemed to have standing to pursue visitation with the child because of equitable circumstances. The grandparents maintained regular contact with the child and the child’s siblings for many years before the dispute with the parents caused all visitation to stop. The Court held that although an acrimonious relationship between the parties is an important factor to consider, an acrimonious relationship is generally not sufficient cause to deny visitation to the grandparent.

 

In the Matter of Steven MASTRONARDI v. Debra MILANO–GRANITO the Court held that the animosity  between the paternal grandparents and the children was a result of the acrimonious relationship between the parties. Here the children had issues with seeing the grandparents and a forensic evaluator was hired to explore why the children felt this way. The evaluator determined that the grandparents’ behavior was not the cause of the issues the children had with the grandparents and thus ordered visitation. 

 

In the Matter of Garth MARCHANT v. Aziza MARCHANT the Court held that the maternal grandfather did not establish equitable circumstances granting him standing to seek visitation with his grandchildren. The grandfather filed a petition for visitation with three grandchildren.  Here the Court held that he did not have a relationship with the children several years before the hearing and he acknowledged that he did not have a relationship with the children. 

 

Grandparents have an important role to play in the lives of their grandchildren. Just because you don’t get along with the parents of the children does not mean that you cannot have visitation. It is important that if you are seeking visitation and the parents are not allowing you to do so, that you make reasonable efforts to obtain visitation and if these efforts don’t work petition the Family Court of the county the children live in for visitation.  It is clear that the law recognizes the rights of grandparent’s to have visitation with their grandchildren. If you are being denied visitation with your grandchildren feel free to give me a call at 718-864-2011. I am a Brooklyn, NY based grandparent visitation attorney serving all five boroughs.

 

More Blog Entries:

Brooklyn Divorce Attorneys: Help With Divorce by Publication, Aug. 20, 2014, Brooklyn Family Law Attorney Blog


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