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GRANDPARENTS: WHAT ARE THEIR RIGHTS IN NEW YORK?

For many of us, family goes beyond our parents, siblings, and children. It extends to aunts, uncles, cousins, and, significantly, grandparents. There is no question that grandparents often play an extremely important role in the happiness and development of their grandchildren. They provide love, guidance, and, in many cases, care. Some grandparents go above and beyond that, stepping into the role of parent where necessary. However, although the significance of grandparents in children's lives is clear, grandparent rights in New York can often be murky, for both custody andvisitation.

Although it should seem obvious that grandparents have a right to spend time with their grandchildren, the law provides great deference to parents. In the Supreme Court case Troxel v. Granville, it was determined that where a parent is a fit parent, state courts must have the presumption that they are acting in the best interests of the child. This is even if they are cutting off the children from a healthy, happy relationship with their grandparents.

In many states, including New York, this presumption is rebuttable. What that means is that a grandparent seeking custody or visitation with their grandchildren must show that this presumption does not apply under their circumstances.

In New York, grandparents seeking custody and visitation follow along the same statute, DRL Article 5, §72.

Under DRL Article 5, §72, the first step that a grandparent seeking custody or visitation must take is to establish that they have standing (or the right) to bring the case to court. In order to have standing to pursue custody or visitation, the grandparent must show that:

  1. At least one or both of the grandchildren's parents are deceased, or
  2. Other extraordinary circumstances apply that would enable the court to hear the case.

With respect to the grandchildren having one or more deceased parents, grandparent visitation can become an issue where the grandparent's child dies and the other parent (the son or daughter-in-law) denies the parents of their deceased spouse or ex-spouse access to the grandchildren.

Other extraordinary circumstances that confer standing on grandparents when both parents of the child are alive include:

  • The parent or parents voluntarily leaving the grandchildren in the grandparents custody and control, where as a result the grandchildren have resided with the grandparents continuously for at least 24 months; or
  • The parent(s)' abandonment of the child(ren); or
  • The parents are physically or mentally unfit to care for the children.

Once either a deceased parent or other extraordinary circumstances are established so that the grandparents seeking custody or visitation are deemed as having standing to bring the case to court, the next step is a "Best Interests of the Child" analysis, which is done by the court. During this analysis, the court will look at several factors in order to determine whether granting grandparents custody of or visitation with their grandchildren against the parents' wishes is in the children's best interests. These factors include:

  • Each child's wishes
  • The prior and current relationship between the child(ren) and the grandparents; and
  • The basis for the parent's opposition to custody or visitation.

Where the child has a close, positive relationship with the grandparents, or the children were left the grandparents' care for extended periods of time while the parents were uninvolved, or the parents are cutting off the relationship out of spite or without any justifiable basis, the court is more likely to award visitation. Where a parent is unfit or left the children with the grandparent for at least 24 months continuously, or has abandoned the children, the court is more likely to award custody.

Therefore, although grandparents may have more limited rights than parents, New York courts do recognize and provide for the important grandparent-grandchild relationship, and a number of ways to pursue maintaining that important bond under the law.

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