Grandparents may have some rights in terms of child visitation. However, these rights are not as extensive as those granted to the child’s parents. Additionally, laws regarding grandparents and their visitation rights vary widely from state to state. Each state maintains specific statutes regarding granting visitation rights to grandparents.
This is due to the fact that it is assumed that maintaining contact and a relationship with their grandparents is in the child’s best interest. Generally speaking, grandparents do have limited rights to visit their grandchildren in most states. This remains true whether or not the parents’ marriage has been legally dissolved.
This also applies whether one or both of the child’s parents have died. However, at least twenty states currently have more restrictive visitation laws. In those states, a legal right of visitation for grandparents is only created in the event of divorce of the parents. Alternatively, the legal right of visitation may be created in the death of one or both of the child’s parents.
To generalize, the law has determined that grandparents do not have a natural right to visitation. This right is not something they are owed simply by virtue of being grandparents. Grandparents who have been granted visitation rights may visit with their grandchild, but only under the supervision of the person who has been granted custody of the child.
In New York specifically, the law recognizes that parents have a fundamental right to raise their children as they see fit. This includes determining who is allowed to visit their children. Because of this, a New York court would only grant visitation rights 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, the grandparent visitation rights in New York state are considerably restrictive. Grandparents in New York may only request court-ordered visitation rights when one or both of the parents have died. Another circumstance would be if the grandparents have a substantial relationship with the child, and they are able to provide proof of that fact.
What Factors Might a New York Court Consider When Determining Grandparents Visitation Rights?
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. Generally speaking, New York courts 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. What this means is that only biological or adoptive grandparents may request visitation rights. This right to request does not extend to great grandparents, or other relatives such as aunts and uncles.
A grandparent who is requesting visitation rights has the “burden of proof” to show that their request is actually 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. One party will generally have the burden of proof, while the other party will not. The party who has the burden of proof varies according to the specific type of case.
When determining grandparents rights in New York, the court will use many factors. This process can be simplified into three steps:
- Establishing Legal Grounds: The grandparent making the request must establish that they have a legal right to do so. If one or both of the child’s parents are deceased, the right is automatically determined. If one or both of the child’s parents are still living, the process moves on to step two which consists of 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 whether 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;
- The parent’s motivation for limiting or restricting the grandparent’s visitation privileges; and
- The morality of the parents, as well as their past behavior and the home environment.
- Pre-Existing Relationship: The court will need to see that there is a strong, healthy relationship between the grandchild and the grandparents. It is very unlikely that a court would grant visitation rights to a grandparent who is barely involved with their grandchild. If the parents have made deliberate efforts to prevent contact between the child and the grandparent, but the grandparent has made a deliberate effort to establish a relationship, the court may find that a relationship does in fact exist. Additionally, if the grandparents had custody of the child for a period of time before custody rights were restored to the parents, there could be a stronger case to be made for a pre-existing relationship.
A judge must balance the parent’s objections to visitation with other considerations, such as the current family structure. Any animosity between the grandparents and the parents will be considered, but is not generally considered to be evidence enough to deny a request for court-ordered visitation rights.
How to File a Petition for Grandparent Visitation Rights in New York
In order to get visitation rights for grandparents in New York, the grandparents must file a petition. This is a formal written request that must be filed with the court in the county in which the grandchild lives.
The petition should contain information regarding the grandparent’s proposed schedule for any court-ordered visitation. After the request for visitation has been filed, the filing party must then provide notice of the request to every party involved. This includes the child’s parents.
Some examples of what they court will consider when determining whether to grant the request include:
- How far away the parents reside from the grandparents;
- The grandparents’ lifestyle, including whether they are involved in drug or alcohol abuse;
- The child’s desire to visit with their grandparents;
- How attached the child is to their grandparents; and
- Whether the parents have refused to allow grandparent visitation, and why.
If all other factors are equal, the court is more likely to award visitation rights to a grandparent in cases involving a parent who has refused to allow the grandparent to visit the child without any good reason. When the courts have granted visitation rights to a grandparent, a fixed visitation schedule is generally set. This schedule may outline:
- Whose home the child is to reside in on what days of the week;
- Where the child is to be dropped off and picked up; and
- Whom the child will be with during special occasions, such as the child’s birthdays or holidays.
It is preferred that the parents and grandparents work out a visitation schedule on their own, without court intervention. If they cannot, then a court may intervene and impose a schedule of their own, taking into consideration the interests of parents, grandparents, and the child.
Do I Need an Attorney for Help with Grandparent Visitation Rights?
If you are a grandparent in New York seeking visitation rights, you should consult with a local child visitation lawyer. As you can see, state laws regarding grandparent visitation rights can vary quite a bit. An experienced and local family law attorney would be best suited to understanding and explaining how your New York’s laws will affect your course of action.
An experienced attorney can start the process of obtaining visitation rights by filing a petition with the county court in which your grandchild lives, or by filing a modification of the existing visitation order. The attorney will then properly serve the filing on all parties, providing them required notice. Finally, an attorney can also represent you in court as needed.
