Understanding Grandparents’ Rights to Visitation: A Legal Blog

The issue of Grandparent’s rights, and more specifically what are the rights of grandparents to see their grandchildren is asked a lot. The short answer is that the right of a grandparent to see or get custody of their grandchild depends. I’ve addressed some issues in a previous article https://nydivorcefacts.com/grandparents-rights/. Legal Zoom also has a good basic article on the topic

However, since the questions still come up, I thought I’d take another look at the issues. Also, I will solely focus on New York law. Different states have different rules.

The Bedrock of Grandparents’ Visitation Rights

Starting at the beginning, originally, grandparents did not have an inherent right to visitation with their grandchildren. But, over the years the law has evolved as people have pushed for grandparent’s rights. The question of “what are the rights of grandparents to see their grandchildren” has gone from “none” to “possibly visitation or even custody.”

At the heart of the legal system’s approach to grandparents seeking visitation rights is a principle of equity – fairness, in common parlance. Courts are guided by what is fair and just under the circumstances. For grandparents, this means they must demonstrate a meaningful existing relationship with their grandchildren or show they have made substantial efforts to establish one when such efforts have been thwarted by the parents.

The Two-Pronged Test for Grandparent’s Rights to Visitation

1. Sufficient Existing Relationship: If grandparents can prove a significant ongoing relationship with their grandchildren, they lay the groundwork for the court to intervene. Such relationships are often demonstrated through a history of regular visits, caregiving, or consistent communication.
2. Sufficient Effort to Establish a Relationship: When parents impede the relationship between grandparents and grandchildren, the law requires grandparents to show they have done everything reasonably possible under the circumstances to maintain that connection. This could include frequent attempts to reach out to the grandchildren through calls, messages, or other means of communication.

Grandparent’s Rights Case Scenarios: From Standing to the Child’s Best Interests

In legal terms, ‘standing’ refers to the right to bring a case to court. To gain standing, grandparents must pass the two-pronged test mentioned above. Once standing is established, the court will then consider what serves the child’s best interests.

Consider a grandmother who has been part of the child’s life from birth until a falling out with the parents. If she then makes regular attempts to maintain contact, the court is likely to find she has standing for visitation rights. The grandmother’s actions reflect a clear intention to remain part of the child’s life, showcasing the law’s preference for maintaining existing familial bonds when it’s feasible and reasonable.

However, a grandfather who has had little contact over several years with his grandchildren is unlikely to meet the threshold required for standing. The law expects proactive and consistent efforts to maintain a relationship, not sporadic or minimal attempts.

Grandparent’s Rights: Equity, Efforts, and Existing Bonds

The concept of equity remains a central theme in the discussion of grandparents’ rights. Courts look for fair and equitable circumstances to justify their intervention. When a grandparent demonstrates ongoing, loving involvement in a grandchild’s life, equity tends to favor allowing that relationship to continue, barring any countervailing concerns about the child’s welfare.

When Efforts Are Met With Resistance

It is particularly challenging when grandparents have to prove their efforts in the face of parental opposition. The law understands that there can be genuine cases where parents may unjustifiably prevent a healthy grandparent-grandchild relationship. In such instances, the grandparent’s persistence is key. The court examines whether the grandparents have consistently attempted to overcome the barriers erected by the parents.

Best Interests of the Child: The Ultimate Decider

Once standing is established, the focus shifts to the best interests of the child. This involves a holistic look at the child’s needs, including emotional and psychological well-being. Regular contact with a loving grandparent can be beneficial, but each case is assessed on its merits. Sometimes, despite a grandparent’s best efforts and intentions, the court might conclude that visitation is not in the child’s best interests, especially if it disrupts the child’s stability or involves conflicting familial dynamics.

The Grandparent’s Burden of Proof

When trying to establish Grandparent’s rights to visitation the onus to prove they deserve the court’s intervention lies with the grandparents. This isn’t a mere assertion of affection or a generic claim of attachment. It’s a substantive demonstration of an ongoing, meaningful relationship or significant efforts to create one. The grandparents must present concrete evidence of their involvement or attempts at involvement in their grandchild’s life.

The Court’s Discretion in Granting Visitation Rights

It’s important to recognize that the court has broad discretion in determining whether the equitable circumstances necessary for granting visitation rights exist. This discretion allows the court to tailor its decisions to the specific facts of each case, considering the unique dynamics and history of the family involved.

Conclusion

As can be seen from this article, when both parents are still alive, the answer to the question of “What are the grandparent’s rights to visitation” is not easy or clear. The law, while complex, strives to honor and protect these relationships, balancing the need for family continuity with the paramount importance of a child’s welfare.

The grandparent fighting for custody must be able to demonstrate they have and have had a relationship with the grandchild. That is critical. And the grandparent must show that the relationship is beneficial to the children.

Keep in mind that the Judge has broad discretion in this area. Being able to convince the judge is the key to winning the case.

Understanding these legal principles empowers grandparents to navigate their rights and responsibilities and enables parents to understand the scenarios under which the courts may intervene.

For grandparents, the path to securing visitation rights is paved with evidence of love, effort, and persistence. It’s a journey that requires demonstrating not only a desire to be part of a grandchild’s life but also taking concrete steps to make that a reality. For those grandparents faced with legal hurdles, knowing the foundational principles can be the first step towards maintaining that precious bond with their grandchildren.

If you have questions, please call Port and Sava for a free 15 minute telephone consultation at (516) 352-2999