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A Grandparent’s rights to visitation in New York are limited. A grandparent’s visitation and custody rights depend on whether one or both of the parents have died. There is no statutory right to visitation if both parents are alive. The issue of whether a grandparent has the right to visitation comes up when there is a conflict with the parents.
Unfortunately, grandparents may have complex relationships with their own children. This can result in the parents denying or blocking access to the grandchildren. New York does not recognize an absolute right of access or visitation by the grandparents. The court will not second guess or force a parent to allow the visitation. New York law recognizes the importance of the grandparent-grandchild relationship. This relationship can be deep, beautiful, and vitally important to the child. But, there are no absolute grandparent visitation rights.
A grandparent’s rights are triggered and could have a right to seek custody if “special circumstances” exist. Special circumstances are discussed at length below. A grandparent cannot seek custody merely because they think that they’d be better at rearing. The court really is addressing the health, safety, and welfare of the child.
Grandparent’s Rights to Visitation
In New York, a grandparent has a limited right to visitation with a grandchild. The grandparent can seek visitation if (1) the child lives in New York and (2) one or both parents have died. This is not an automatic right. The grandparent must apply to either the Supreme or Family Court as, again, this is not an automatic right. There is a recognition that a grandparent can be an important part of the child’s life and the child can get a benefit not found in any other relationship.
After the application to the court is made, the judge must make a two-step inquiry: first, the court must determine that one or both parents have died. Second, that the visitation is in the best interest of the child.
Grandparent’s Rights to Visitation When a Parent is Blocking Access
The reason that a grandparent is going to court is that the surviving parent or guardian is blocking access. When a grandparent’s rights clash with the parent’s rights, the court must decide the issue in the best interests of the child.
The courts are hesitant to enforce a grandparent’s rights of visitation against a parent’s wishes. Sometimes, the relationship between the grandparent and the surviving parent can be very hostile. Mere hostility is not enough to prevent or terminate the visitation, but the court can consider it. If the hostility is really bad, the court may deny the grandparent’s rights of visitation or if visitation was in effect, then terminate it. The courts do this if the hostility and dysfunction are harmful to the child.
If you are seeking visitation it is important to try to maintain a civil relationship with the parent, and never expose the child the negative feelings. Always work to be the better person, as the court will take that into consideration. The courts recognize the importance of the grandparent-grandchild relationship, but if the relationship with the surviving parent is very toxic, then visitation might not be awarded.
Enforcing A Grandparent’s rights
When a parent is blocking access and denying a grandparent’s rights of visitation, the grandparent can file in the Supreme or Family Court. But, if both parents are still alive, the court will probably dismiss the case. If one of the parents is dead, the grandparent has the right to prove their case. The case will come down to proving to the judge (there are no juries in these types of cases) that the grandchild will benefit from having the grandparent in their life.
A big piece of this will be showing the court that there already is a relationship. For example, assume that the mother and child lived with her mother. Now, the grandparent can show since they lived with the child and that there is a strong relationship. Compare that with a grandparent who lives in another state and rarely sees the child.
The grandparent will also have to show the strength and quality of the relationship, and that the child has benefited and will continue to benefit from it.
This is why maintaining a civil relationship with the parent is important. Notice, I didn’t say friendly, I said: “civil.” We recognize that when a grandparent fights for visitation that things can get contentious. The child should not see the fighting or the bad feelings. Furthermore, no one should be talking to the child about the litigation. Judges hate, absolutely hate with people in a case talk to the child about it. I have a couple of grandparent visitation cases where the grandmother is telling the child about the case and trying to coach them on what to say to their lawyer. Neither of my judges is happy about that.
When a Grandparent can get custody of a grandchild
A grandparent does not have the same rights to custody as the parents. In New York, no person has greater or even equal rights than the parents. Even if the child is removed by the court for neglect, the goal is to ultimately reunify the family.
Yet, a grandparent can get custody of the grandchild if they can prove “special circumstances.” Special circumstances are narrowly defined by law. First, the child must have lived with the grandparent and solely the grandparent for an extended period of time. Generally, if the child has been living with the grandparent for about 18 months, the court will find special circumstances. Again, this means the child is living with the grandparent and is the sole caretaker. Special circumstances do not exist if the child is living with a parent who is living with a grandparent.
The parent cannot be living with the grandparent and the grandchild. When that happens, the court will not find special circumstances. The court is looking to see if the grandparent is the primary caregiver, and the parent is not. When the parent deposits the child with the grandparent that is called “disruption.” When disruption occurs the court can find special circumstances.
However, if one parent deposited the child with a grandparent over the objection of the other parent, the courts might not find special circumstances.
Child Neglect by the Parent
Next, the court has to consider the best interests of the child. Merely because the child has lived with the grandparent, does not mean that the grandparent will automatically get custody. If the parent is unable to care for the child due to mental illness or drug abuse the court could determine that the grandparent should get custody. If Child Protective Services (or Agency for Child Services, ACS in New York City) has filed a neglect petition against the parent, the court may also have grounds to award custody.
Breaking this down. One of the most common ways that a grandparent gets custody is due to parental neglect. The term “parental neglect” is a legal one, and can only be determined by a judge. A child welfare agency, ACS in New York City, and CPS elsewhere, will bring a petition for neglect. If the claim of neglect is so serious that the child in is imminent danger the agency will seek immediate removal. The grandparent can step up as the temporary foster parent. If the agency proves its case the judge can order permanent removal. The grandparent can there petition for custody or continued foster parent status.
If the agency does not file a neglect petition, the grandparent may still seek custody. But, they must establish special circumstances and show that the environment with the parent is unstable and unhealthy.
These cases are not easy for the grandparent and definitely not ground balls. I have seen the agency support a drug-using father over the grandmother who raised the child from birth.
Grandparent custody can also be obtained if the parents consent to it. In such a case, the court will approve the arrangement and issue an order. This is the most preferable way to get custody as it is the easiest.
Grandparent’s Rights to Custody on Consent of the Parent
Grandparent custody can also be obtained if the parents consent to it. In such a case, the court will approve the arrangement and issue an order. This is the most preferable way to get custody as it is the easiest.
Conclusion
Since a grandparent’s rights of visitation and custody are limited in New York, it is important to consult with an attorney to know your rights. You can call Port and Sava at (516) 352-2999 for a free 15-minute telephone consultation.