In certain situations, such as when the health, safety, and welfare of their grandchild are at risk, grandparents can petition the court for temporary or permanent custody of the child. If they can prove that the parents are unfit or otherwise unable to care for the minor child, the court may grant child custody to the grandparents.
When removing a child from the custody of their parents in New York, the courts prefer placement with a relative, such as a grandparent. This is the preference whether custody would be temporary or permanent. Additionally, if the child’s parents die, the court usually awards custody to the grandparents or the child’s designated legal guardian, such as their godparents.
Per grandparent adoption laws in New York, grandparents who have gained custody of a minor child may be eligible to adopt in certain situations. If the child’s parents or a court terminate all parental rights, the grandparents may be able to adopt the child. Additionally, if a minor child’s parents put the child up for adoption, the grandparents may seek to adopt the child.
Adoption is more permanent than custody, even if custody is permanent. Adoption legally establishes the grandparent as the child’s parents. Adoption is only possible if the parents’ rights regarding their child are permanently and legally terminated.
Sometimes, grandparents already act as parents to their grandchildren full-time. However, this does not necessarily mean that they have parental rights. In order to establish their legal rights as parents, they must go to court and go through the adoption process. This has two significant consequences as follows:
- It would guarantee that the grandparents alone have parental rights with respect to the children.
- If the biological parents are alive, their parental rights would be terminated with finality.
If the biological parents are deceased or have had their parental rights terminated, grandparent adoption would not be as difficult. But in cases in which the biological parents are alive and still have their full legal parental rights, grandparent adoption could be a difficult legal matter.
What Legal Grounds Allow Grandparents To Seek Custody in New York?
Grandparents can get custody or adopt their grandchild if doing so would be in the child’s best interest. When determining the best interests of the child, a court considers the health, safety, and welfare of the child, the child’s relationship with their grandparents and parents, the child’s age, and the physical and mental health of the grandparents.
Another option that grandparents have is the legal guardianship relationship. A legal guardianship usually comes about in a situation in which a child’s parents are absent, unfit, or deceased. Custody usually comes up in the context of a parent’s divorce.
For example, if both of a child’s parents are in prison, a family law court might appoint an individual to become the legal guardian of a young child. Legal guardians can be given the legal authority to exercise what is essentially physical and legal custody of a child.
A legal guardianship may be established temporarily with the agreement of a child’s parents. But at a later time, both parents and legal guardians need to petition a court for approval of a guardianship if they want the guardianship to continue beyond a limited temporary period of time.
A significant difference between a legal guardianship and an adoption is that an adoption permanently changes the legal relationship between a child and their biological parents. It basically terminates the rights of the parents with respect to the child with finality.
A guardianship does not necessarily end the rights of parents. Rather a guardianship may be seen as transferring parental rights to the guardian for a period of time. However, a guardianship can be permanent also.
Adoption would give grandparents clear authority to take such steps as including them in their health care insurance coverage and making them the beneficiaries of their bank accounts. It would generally make it easier to manage financial concerns.
What Happens if the Parents Object to Grandparent Custody?
Parents always have the right to object to giving custody of their child to the child’s grandparents. However, grandparents may adopt their grandchildren with or without a parent’s consent. They may only do so if a court determines that parental custody would be detrimental to the child and that it would be in the child’s best interest to be adopted by their grandparents.
If the parents are serving a relatively short term of incarceration, giving grandparents temporary custody may be an option. However, if a child is young and the parents are going to be incarcerated for a lengthy period of time, then permanent custody might be given to the grandparents.
If there is significant evidence that the parents can provide a stable and healthy environment for the child when they are freed from incarceration, adoption by grandparents may be the best option for the child in the view of a court.
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What Types of Custody or Visitation Can Grandparents Get in New York?
Temporary custody is an option that might be the best fit in certain situations. For example, if the goal of grandparents is to have the temporary authority to care for their grandchildren only while the parent or parents serve a short prison sentence, temporary physical custody might be the answer. The parents might still have legal custody, but the grandparents would have the authority temporarily to have the children live with them.
Grandparents may have good cause to seek custody of their grandchild for a variety of reasons as follows:
- The parent or parents are dealing with physical or mental health problems. They may have issues with substance abuse.
- The parents are divorced and may have other hardships as well, such as unemployment or incapacitation and inability to work.
- The parents are incarcerated or otherwise unavailable to provide care and support for their children.
- The parents of the children neglect or abuse them.
If there is evidence of any of these situations, the grandparents would want to seek a legal consultation in New York with a New York lawyer. They could then seek legal and/or physical custody of the children in order to protect the children and provide them with a safer and healthier home environment.
All types of custody could be granted to grandparents depending on the circumstances and the best interests of the grandchild. There is legal custody, which is the right to make decisions about how the child is raised. This would encompass such decisions as where the child would go to school, what kind of medical care they would receive and whether they would receive a religious education.
Grandparents would also have physical custody, which is having the child reside with them. Grandparents could have visitation rights if someone else has custody, e.g., another relative.
If given legal and/or physical custody, the grandparents could have sole custody, either legal or physical or both. They might also gain shared custody, sharing legal or physical custody with a parent or both parents or another relative.
Again, these are the various ways in which custody can be arranged under New York law. A court is going to give the most weight to what is in the best interest of the child. And, of course, the court must consider the rights of the parents.
Under certain circumstances, a grandparent may seek court-ordered visitation with a grandchild. Visitation is possible when one of the following situations exists:
- One or both of the child’s parents are deceased and another person has custody of the child.
- Extraordinary circumstances exist, such as a significant disruption in the parent-child relationship, or
- The grandparent seeks custody after the child lived continuously with the grandparent for at least 24 months and the parent gave up care and control for that period, but the parent now has disrupted the grandparent’s custody for a significant period of time.
- Or there has been a shorter disruption that still qualifies as extraordinary based on the specific facts of the parties’ unique situation.
This right to court-ordered visitation applies only to biological or adoptive grandparents. It is not available to great-grandparents or other relatives.
Can I Stop the Adoption of My Grandchild in New York?
Grandparents may not stop an adoption by another adoptive parent, if a court determines that it would be in the child’s best interests for the adoption by the other adoptive parent to proceed. However, they do have a right to seek the adoption of their grandchildren themselves and to participate in the adoption proceeding initiated by another party.
If an adoption proceeding is in progress because it was initiated by another interested party, e.g., another relative of the child, the grandparents should contact a New York lawyer promptly for help in asserting their rights in court.
Should I Hire a New York Family Lawyer To Help With Grandparent Custody or Adoption?
If you are a grandparent and believe you have cause to assume some kind of legal authority with respect to your grandchildren, you want to talk to a New York adoption lawyer. LegalMatch.com can connect you to an experienced lawyer who can review the facts of your situation and guide you to the option that best fits your needs in the situation you are confronting.