Reviewed by Diana Szabo, Esq.
Key Takeaways
- Grandparents have no automatic right to visitation in New York.
- The court asks two questions in order: do you have standing, and is visitation in the child’s best interests?
- Standing requires a deceased parent or equitable circumstances. Parents being unreasonable is not enough on its own.
- Document every attempt you make to see your grandchild. Your efforts are what standing turns on.
Sometimes in the state of New York, it is difficult to obtain visitation of a child if you are anyone other than the custodial parent. Specifically, if you are a grandparent who is worried that a child custody decision will keep you from seeing your grandchild and ultimately will hurt their well-being, read on to see how a proficient Long Island child visitation lawyer at Barrows Levy PLLC can assist you in requesting a visitation order.
Can a Grandparent Request a Visitation Order in New York?
New York law states that a grandparent of a child may apply to the New York Supreme Court or family court for visitation rights if one or both parents are deceased or if the parents have interfered with their relationship. The law does not state that grandparents have an automatic right to visitation, though. On the contrary, New York courts will not get involved if there is a fit parent and the request for visitation is against their wishes. This is because it is presumed that a fit parent’s decision is in the best interest of the child.
This presumption arises from the Troxel v. Granville case, which is a 2000 United States Supreme Court decision that ruled that fit parents have the constitutionally protected right to make decisions regarding the care of their child, including who cares for and associates with them. This is ultimately the reason that New York carefully applies the grandparent statute, and why grandparents are asking the court to overrule a parent’s judgment carries a heavy burden of proof.
The Court Asks Two Questions, in Order
In accordance with Domestic Relations Law § 72, a petition will proceed in two stages, and the first step must be cleared before the second step is reached.
- Do you have standing? Either one or both of the child’s parents have died, or circumstances exist that equity would see fit to intervene. Nothing else gets you through this gate.
- Is visitation in the child’s best interests? Only if standing is established does the court reach this question, weighing the factors below.
A grandparent can satisfy the first stage, and ultimately lose on the second. These are separate determinations, and understanding how these work sequentially can tell you if your case is likely to be won or lost.
What “Equitable Circumstances” Actually Requires
If both parents are living, “equitable circumstances” carries considerable weight, and it means more than the parents being unreasonable. The court will look at the history:
- Was there a real, substantial relationship between the grandparent and the child?
- Was there no substantial relationship?
- Were there diligent efforts to build a relationship with the child?
Practically, this means that your efforts carry as much significance as your exclusions. Calls made, cards and gifts sent to the child, birthday wishes, and requests to visit will all be examined by the court. A grandparent who lives hours away and calls every month may be doing what is available to them, while a grandparent who lives a town over and has never tried to visit makes the case more difficult, regardless of the parent’s actions.
If you are being denied contact now, start keeping a record of every attempt you make and how it is received. That record is often what standing turns on.
What Factors Are Considered for a Visitation Request?
To have proper grounds for a visitation request, a grandparent must be able to establish that withholding access to the child is, in fact, not in the best interest of the child. Moreover, New York courts will consider the following factors when deciding visitation:
- The relationship between the parents and the grandparent.
- The relationship between the child and the grandparent.
- The good faith of the grandparent while applying.
- The time-sharing arrangement between the parents and the child. If one parent is deceased, the court may consider the time-sharing agreement that was previously established with the deceased parent.
- The effect the visitation will have on the relationship between the child and the child’s parents.
- Any history of physical, emotional, or sexual abuse or neglect by the grandparent.
- The amount of time since the child last saw their grandparent and the reasons for any lapse in contact.
Siblings Have Their Own Route
You should also understand that, under New York law, grandparents are not the only relatives with a statutory path to visitation. In accordance with Domestic Relations Law § 71, siblings, regardless of half or whole blood, can petition for visitation with their sibling on the same threshold applied to parents.
The blood requirement plays an integral role. Half-siblings have the same legal standing as full siblings, but step-siblings with no blood relation do not have any legal standing. Aunts, uncles, and cousins also have no right, though courts have recognized standing for non-parents in extraordinary circumstances.
Contact Our Experienced Long Island Firm
Barrows Levy PLLC is a dedicated New York law firm focused on providing quality legal services to clients in New York City and Long Island. If you require a lawyer who has notable experience handling family and estate planning matters, Contact Barrows Levy PLLC to schedule a consultation with one of our experienced attorneys today.
