New York state law acknowledges that grandparents have a special relationship with grandchildren and provides an opportunity for them to seek custody or visitation in certain circumstances.
How Grandparents Can Seek Visitation
A grandparent can bring a petition for visitation during a divorce proceeding between the child’s parents, or they can bring a separate action seeking custody or visitation.
The first issue in a grandparent visitation case is whether the grandparent has legal standing to seek custody or visitation. The court considers the nature and extent of the grandparent’s relationship with the child. The question is whether the relationship is significant enough for continued contact to be important.
If the parent(s) denied the grandparent contact with the child, the court will look into whether the grandparent has continued to stay in contact remotely through calls, texts, emails, Zoom, or mail.
Grandparents can also seek visitation if:
- The child’s parents are deceased
- Another family has adopted the child
- The parent’s parental rights have been terminated
- Conditions exist in which it would only be fair for the court to allow them to seek custody or visitation
If the court determines that the grandparent has standing, a trial is held to determine if custody or visitation is in the child’s best interest. The best interest analysis considers:
- The impact on the child of continued or new visitation with the grandparent
- The relationship the grandparent has with the parent
- Whether the grandparent supports or undermines the parent’s relationship with the child
Additionally, the court considers if the parent chose to keep the child away from the grandparent. Parents have a unique right to make parenting decisions about their child, and the court gives weight to a parent’s decision to keep a child away from a grandparent as their right.
If you are a grandparent seeking visitation with your grandchild, your attorney will work with you to create a convincing case. It is important to detail your contact with your grandchild and the importance of the connection you share. Photos, videos, texts, emails, cards, drawings, and gifts are significant evidence. Calendars showing events you attended with your grandchild or times you spent with your grandchild are also crucial. Details about the care you have provided for the child, such as taking them to school, to the doctor, to play dates, shopping, or to family events are important, as well as simple things like just playing with them or spending time with them.
Make a list of witnesses who have seen you with your grandchild and can testify about your relationship, your abilities as a grandparent, and the safety of your home.
If there has been a breakdown in your relationship with the child’s parent, your attorney will want to know about that and how it has impacted your relationship with the child.
Defending Against a Visitation Petition
If you are a parent and your child’s grandparent is seeking visitation, you likely have a good reason for not wanting your child to spend time with the grandparent. Your attorney will help you develop a convincing argument as to why visitation is not in your child’s best interest. You may have concerns about:
- A history of the grandparent providing subpar care for the child
- A lack of parenting skills and abilities
- Addition or substance abuse
- Other people living in the home with the grandparent
- Physical, sexual, or emotional abuse
- Poor or unsafe conditions in the home
- Religious or lifestyle choices or beliefs
- The grandparent’s mental or physical health or abilities
- Your child’s response to the grandparent
- Your own or the other parents’ childhood experiences with the grandparent
It is important to be specific and provide as many details as possible so that your attorney can present a persuasive argument on your behalf.
In addition to visitation, grandparents can also seek custody of their grandchild if:
- Both parents are deceased
- There are extraordinary circumstances in the case
- There has been an extended disruption of the parent’s custody of the child for at least 24 months, and the parent voluntarily placed the child with the grandparent, and the child has lived there during that time
Grandparent rights are taken seriously in New York. If you are seeking custody or visitation with your grandchild or is a parent being sued for grandparent custody or visitation, it is important to seek competent legal representation since grandparent custody and visitation cases are very unique and detailed.