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RobertJDFL
RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 10260
Experience:  Experienced in multiple areas of the law.
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I have two grandchildren who reside in New York since October

Customer Question

I have two grandchildren who reside in New York since October 2010. Since that time we have been given the opportunity to see our grandchildren on EVERY holiday that closes his school. We drive to NY to get them and take them back on the dates the mother tells us. I received an email today stating that the children will no longer be allowed to visit us. Child support through the state of NY was determined yesterday and the mother was not happy with it. Please tell me if we have any rights and what they are. We have been a part of the children lives from the day they were born and the will be devastated if we are no longer allowed to be in their lives; not to mention the pain this is causing both me and my husband. Please, please reply as to what we can do. My husband, son and I reside in Ohio.
Submitted: 2 years ago.
Category: Family Law
Expert:  RobertJDFL replied 2 years ago.
Thank you for your question.

So I can better provide you with an accurate answer, I need some more information first. Am I correct in understanding that the parents are divorced, separated, or were never married?
Customer: replied 2 years ago.
They were never married.
Expert:  RobertJDFL replied 2 years ago.

Thank you for your question. I appreciate your patience while I researched and typed out your answer.


I appreciate your quick reply. First, you should know that grandparent visitation is not a constitutional right, and in cases where parents are married and together, parents generally have the right to decide whether or not grandparents can visit with their grandchildren, which is why I asked the circumstances of the parental relationship.

 

In New York, grandparents have a right to seek assistance of the court to obtain visitation with their grandchildren. That right is included in both the Domestic Relations Law and the Family Court Act. Section 72(1) of the Domestic Relations Law states that

“[w]here either or both of the parents of a minor child, residing within this state, is, or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and . . . the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.”

 

Section 72(1) “does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild”. Wilson v. McGlinchey, 2 N.Y.3d 375, 380 (2004). When grandparents seek visitation under §72(1), the court must undertake a two-part inquiry. “First, [the court] must find standing based on death or equitable circumstances”; and “f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild”. Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181 (1991).

 

What all that legal information breaks down to is this: Generally, a grandparent can automatically seek visitation when a parent passes away. Alternatively, grandparents can seek visitation when equitable circumstances exist warranting court intervention. In making this determination, the Court must consider that a parent has objected to the grandparent/child contact and assess the nature and basis for the objection. Further, the grandparent must establish an existing relationship with the grandchild or, minimally, a sufficient effort to establish one, and thus deserving of the court’s protection.

 

Given just the facts you stated, I think you can establish this first part. You had an exisiting relationship, and now find yourselves cut off from having contact.

 

Once the Court finds that a grandparent has standing to pursue visitation with his/her grandchild/ren, the next inquiry made by the Court is whether an order of visitation is in the best interests of the child. There is no set standard for what is in a child’s best interest. Instead, each individual case involves an objective independent evaluation, where the court adequately assesses all of the circumstances for and against grandparent contact, including the effects such visitation will have on the child/ren. This can include the strength of relationship between you and the grandchildren, how long the relationship existed, whether you are properly able to take care of the grandchildren when having visitation, the wishes of the grandchild/ren, etc. The court can consider parental objections as well; however, the determinative factor overall will be what effect mandated visitation would have on the child’s well being.



If you require additional information, press "REPLY" and I will be happy to assist you further.



Customer: replied 2 years ago.
So my next step would be to file in Family Court for visitation?
Expert:  RobertJDFL replied 2 years ago.
That's correct, you would have to petition the family court in New York, where the children live, for visitation rights.

The New York Bar Association has a lawyer referral service that may be able to put you in touch with a family law attorney who can help you. The number is XXXXX
RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 10260
Experience: Experienced in multiple areas of the law.
RobertJDFL and 3 other Family Law Specialists are ready to help you
Customer: replied 2 years ago.
Thanks.
Expert:  RobertJDFL replied 2 years ago.
Of course, my pleasure. All the best to you. I hope things work out.

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