Family Law Questions? Ask a Family Lawyer Online.
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.
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