When Can Grandparents Seek Custody of Grandchildren in NY?

Grandparents can be instrumental in caring for children, especially when parents encounter challenges that demand their time and attention. Under normal circumstances, grandparents happily serve as babysitters, tutors, coaches, and role models for youngsters who benefit enormously from their love and wisdom. Yet, grandparents’ contributions become even more important when parents are so overwhelmed by the obstacles life throws at them that they can no longer function as the primary caretakers of their own children. It is then that grandparents often assume the parental role, albeit informally.

However, there are many cases where acting as an interim caregiver on an informal basis is not enough. The arrangement may be too chaotic for children who need stability for healthy development. When grandparents recognize that their “stopgap” efforts are not sufficient to safeguard their grandchildren’s health and welfare, they might want to have actual legal authority over the child. This goes beyond visitation rights to legal and physical custody of their grandchildren. But when is it possible for grandparents to take this decisive step?

How Can Grandparents Get Custody of Their Grandchildren in New York?

New York’s Domestic Relations Law § 72 states that when a grandparent of a minor “can demonstrate to the satisfaction of the court the existence of extraordinary circumstances,” the grandparent can petition for custody. The court can issue the custody order based on “the best interests of the child.” What constitutes extraordinary circumstances? The law cites, as an example, “An extended disruption of [parental] custody,” which the law further says includes, but is not limited to, “a prolonged separation of … parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child, and the child resided in the household of the petitioner grandparent or grandparents.” The law further allows the court to find “extraordinary circumstances” for a “prolonged separation” of “less than twenty-four months.”

So, what does all this mean?

First, we most note that a parent’s right to custody of their child is greater than the right of the grandparents. Therefore, this type of custody battle is not the same as one between two parents with theoretically equal standing. Simply asserting that the grandparents are better caretakers is not sufficient reason for any judge to take the child from the parent(s) and place her in the care of the grandparents. If a grandparent wants to challenge one or both parents for custody, the law requires evidence of a highly unusual situation.

In drafting the law, the state legislature allowed "prolonged separation" to meet the requirement of "extraordinary circumstances." Therefore, if the child lived with the grandparents for an extended period of time, while having little to no contact with the parent, that situation would be unusual enough to give the grandparents a greater right to custody than the parent. Of course, the court also would have to consider other factors, such as whether the child had formed bonds of affection with the grandparents, the extent to which the parent’s surrender of responsibility was voluntary, and other considerations affecting “the best interests of the child.”

The law gives two years as a benchmark for the separation, but allows that a shorter period of separation could constitute extraordinary circumstances, if accompanied by other factors.

But what else might the court consider to be “extraordinary circumstances”? Usually, the matter comes down to parental fitness. Parents who abuse or neglect their children create an “extraordinary” situation where the state must intervene in the best interests of the child. Substance abuse or mental illness often factor into a parent’s inability to maintain employment, supervise and care for children, and provide a safe, nurturing environment. Parents who are engaged in illegal activities put themselves and their children at risk.

Grandparents who present evidence that a parent’s erratic and/or unlawful behavior places the child in danger can convince the court to act for the child’s welfare. Provided the grandparents can offer a stable and healthy environment for the child, placement with them would be preferable to a foster care situation.

Fitness of the Grandparents to Act as Custodians of the Child

In addition to proving a parent is unfit, the grandparents must demonstrate their own ability to act as primary caretakers of the grandchild. The court will consider the grandparents' overall health and vitality, moral character, and living situation. The court will also consider the child’s age of development. Relatively young grandparents might have the energy to meet a toddler’s needs. Still, elderly grandparents who are experiencing physical decline would probably not be a good match for younger children, who require constant personal care and active supervision. However, older children who can manage many of their own needs and only require companionship and counsel might thrive under the guidance of older grandparents.

In sum, grandparents who want custody of their grandchildren can prevail in court, if they can prove circumstances that justify removing the child from the parent, along with evidence that they can provide a safe, stable, and loving home.


Karen Rosenthal

Karen B. Rosenthal is a partner and co-founder at matrimonial litigation firm Bikel Rosenthal & Schanfield LLP, where she brings 35 years of matrimonial law experience to bear in matters involving high-net-worth equitable distribution, contentious custody battles, and other high-stakes disputes. Certified as an Attorney for the Child and a frequent speaker on topics related to children going through high-conflict divorce, she has been recognized as a leading New York lawyer by Super Lawyers, Best Lawyers, Crain's New York Business magazine, and New York magazine.

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