Thank you for your patience. Sorry to hear about what is happening. I can tell you care very deeply for your grandchildren.
In New York State, certain circumstances must exist before the courts may grant custody or visitation rights to grandparents. Where one or both parents of the child are deceased, or where circumstances show that there is a need for the courts to intervene, grandparents may apply to the New York State Supreme Court or the New York State Family Court for visitation rights, alleging that the best interests of the child shall be served by granting visitation rights to the grandparents.
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).
The New York Statute is based upon the presumption that the parent’s wishes represent the best interests of the children. The Court noted that:
. . . courts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. “It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement” (Lo Presti v. Lo Presti, 40 N.Y.2d 522, 526 (1976)).
To determine whether standing exists, state law shows the Court looks at the history of the relationship between grandparents and child. Was there regular contact? Have the grandparents made diligent efforts to have regular contact with their grandchildren? Did the parents frustrate any attempt at a relationship, and if so, why? In other words, the nature and the extent of the grandparent/grandchild relationship is an essential part of the inquiry. So too is the nature and the basis of a parent's objection to visitation. The Court will then determine if it is in the best interests of the child to have grandparent visitation.
To sum it all up, the nature and extent of the grandparent-grandchild relationship is an essential part of the Court's inquiry. So too is the nature and basis of the parents' objection to visitation. In other words, the Court analyzes what it requires of grandparents in the context of what circumstances allowed them to reasonably do. You can petition for visitation, but it's a heavy burden to overcome for a grandparent because as noted above, courts do defer to the parents to make decisions for what they believe is in the best interest of their children, even if it's not necessarily fair or even if it's based on a good reason.
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