Grandparents are not automatically granted any legal visitation rights just because of their relationship with their grandchild. Each state has their own rules and provisions regarding the legal rights granted to grandparents, specifically visitation rights.
In general, grandparents are allowed some level of visitation so long as there are no concerns, such as alcohol abuse or a history of violence, which would determine a person unfit to spend time with a child. In New York specifically, the law recognizes that parents have a fundamental right to raise their children as they see fit, which includes who is allowed to visit their children. As such, a New York court would only grant visitation to grandparents if doing so would be in the child’s best interest.
Some states do allow for grandparents to request visitation rights. In comparison to these other states, the grandparent visitation laws of New York are rather restrictive. Grandparents in New York may request court-ordered visitation rights when one or both of the parents have died, or the grandparents have a substantial relationship with the child that they can prove.
Additionally, a court may grant grandparent visitation rights if the child’s parents have interfered with the grandparent’s efforts to establish or maintain a healthy relationship with the child. New York courts tend to only allow for grandparent’s visitation if there are circumstances in which the court feels that intervention is the proper course of action.
In New York specifically, courts will only consider requests for visitation rights from the natural grandparents; only biological or adoptive. This right to request does not extend to great grandparents, or other relatives such as aunts and uncles. Only biological or adoptive grandparents are able to obtain visitation rights.
A grandparent who is requesting visitation rights has the “burden of proof” to show that their request for court-ordered time is in the child’s best interests. The burden of proof refers to the duty to provide sufficient evidence in order to assist the court in making their decision.
New York courts use many factors when making decisions regarding whether grandparents are entitled to visitation rights with their grandchild. This process can essentially be broken down into three parts: establishing legal grounds, demonstrating it would be in the best interest of the child, and demonstrating the existence of an established and functional relationship with the child. These are as follows:
- Establishing Legal Grounds: The requesting grandparent will need to establish that they have a legal right in making their request. If one or both of the parents are deceased, the right is automatically determined. If one or both of the parents are still living, the process moves on to proving that the request is in the best interest of the child;
- Best Interest of the Child: New York courts will examine all relevant factors when considering if granting a grandparent visitation rights is in the best interest of the child involved. Some of these factors could include the wishes of the child, the emotional and physical needs of the child, and the parent’s motivation for limiting or restricting the grandparent’s visitation privileges. Some other determining factors might include the morality of the parents as well as their past behavior and what the home environment is like; and
- Pre-Existing Relationship: The court will want to see that there is a strong, healthy relationship between the grandchild and the grandparents. It is unlikely a court would grant visitation rights to a grandparent who barely knows the grandchild. If the parents have made deliberate efforts to prevent contact between the child and the grandparent, and the grandparent has made an effort to establish a relationship, the court may find that a relationship does exist. Further, if the grandparents had custody of the child for a period of time before custody rights were restored to the parents, there may be a stronger case to be made for a pre-existing relationship.
A judge will need to balance the parent’s objections to visitation with other considerations, such as the current family structure. Any animosity between the grandparent and the parents will come into play, but will not be evidence enough to deny a request for court-ordered visitation rights.
If you are a grandparent in New York seeking visitation rights, you will need to start the process by filing a petition with the county court in which your grandchild lives. This petition will require specific information and have other steps involved, such as giving notice to all parties involved.
Additionally, each state has their own laws regarding grandparents visitation rights. It is in your best interest to consult with a knowledgeable and qualified child visitation lawyer. They will inform you of your rights as well as your state’s laws, and help you proceed if there is a legal basis for your case.