Grandparents often do have some rights related to child visitation. However, these rights are not as extensive as those granted to the parents of the child.
Grandparents are often granted visitation because it is assumed that maintaining contact as well as a relationship with their grandparents will be in the child’s best interest. In general, grandparents have limited rights to visit with their grandchildren in the majority of states.
This can apply whether or not their parents’ marriage has been legally dissolved or both of the child’s parents have died. There are, however, at least twenty states with more restrictive visitation laws.
In these states, the grandparents are only provided legal visitation rights in the event of a divorce of the parents. In the alternative, the legal right to visitation may be created if one or both of the child’s parents pass away.
Grandparent visitation rights are not something that grandparents are owed simply by virtue of being grandparents. Those who have been granted visitation rights can visit with their grandchild, but only under the supervision of the individual who has been granted custody of the child.
In the State of New York, specifically, the law provides that parents have a fundamental right to raise their children as they see fit, including determining who is permitted to visit their children.
Due to this, New York courts will only grant visitation rights to grandparents when doing so is in the child’s best interests. There are some states that allow for grandparents to petition for visitation rights.
The grandparent visitation rights in New York are fairly restrictive. Grandparents in the state can only request court-ordered visitation rights when one or both of the parents have passed away.
They may also request visitation when the grandparents have a substantial relationship with the child, and they can provide proof of that fact.
What Factors Might a New York Court Consider When Determining Grandparents Visitation Rights?
A court may grant visitation rights to grandparents if the parents of the child have interfered with the grandparents’ efforts to establish or maintain a healthy relationship with their grandchild. In general, courts in New York only allow grandparent visitation when there are circumstances that cause the court to determine that intervention is the proper course of action.
In the State of New York, a court will only consider requests for visitation rights from the natural grandparents. This means that only biological or adoptive grandparents are permitted to request visitation rights.
This right to request visitation does not extend to great-grandparents or other relatives, for example, aunts and uncles. Grandparents who are requesting visitation rights have the burden of proof to show that their request is in the best interests of the grandchild.
The burden of proof is the duty to provide sufficient evidence to assist the court in making a decision. When a New York court is determining grandparents rights, it will examine many factors.
The process of determining grandparent visitation rights includes three main steps, including:
- Establishing legal grounds: The grandparent making the request must establish that they have a legal right to do so;
- If one or both of the child’s parents have passed away, the right to visitation is automatically determined;
- If one or both of the child’s parents are still alive, the process will move on to step two;
- Best interests of the child: New York courts will examine all relevant factors when considering whether granting a grandparent visitation rights is in the best interest of the child involved. Some of these factors may include:
- The wishes of the child;
- The physical and emotional needs of the child;
- The parents’ reasoning for limiting or restricting the visitation with the grandparents;
- The morality of the parents, as well as their past behavior and the home environment; and
- Pre-existing relationship: A court will need to be shown that a strong, healthy relationship exists between the grandchild and the grandparents;
- It is not likely that a court will grant visitation rights to a grandparent who is not very involved with their grandchild;
- If the parents have made a deliberate effort to prevent contact between the child and the grandparent but the grandparent has made an effort to establish a relationship with their grandchild, the court may determine that a relationship does, in fact, exist;
- Additionally, the grandparents might have had custody of the child for a period of time before custody rights were restored to the parents. In this case, there may be a stronger case to be made for a pre-existing relationship.
How Do I File for Grandparents Rights?
To obtain grandparent visitation rights in New York, the grandparents will need to file a petition. A petition is a formal, written request that is filed with the court in the county where the grandchild resides.
The petition for visitation should contain information about the grandparents’ proposed schedule for court-ordered visitation. Once the petition for visitation has been filed, the filing party has to provide notice of their request to all parties involved, including the child’s parents.
Examples of what the court will consider when determining whether to grant the visitation request include:
- How far away the parents and grandparents live from one another;
- The grandparents’ lifestyle, including whether they are involved in drug or alcohol abuse;
- Whether the child desires to visit with their grandparents;
- How attached the grandchild is to their grandparents; and
- Whether the parents have refused to allow grandparent visitation and why.
When a court has granted visitation rights to a grandparent, a fixed visitation schedule is typically set, which may include:
- Whose home the child will reside in, and on what days of the week;
- Where the child will be picked up and dropped off;
- With whom the child will be for special occasions, for example, the child’s birthday or other holidays.
It is typically preferred that the pirates work out the visitation schedule on their own and have the court approve it. If that is not possible, the court will create one and impose it upon all parties.
Can a Parent Deny a Grandparent Visitation Rights?
Yes, a parent may deny grandparent visitation rights, as parents have more extensive rights over their children. However, most courts will assume that it is in the child’s best interest to maintain a relationship with their grandparents unless the parent can demonstrate that it would be harmful to the child.
Can Grandparents Sue for Visitation Rights?
As noted above, grandparents can petition for visitation rights in New York. The State of New York, like many other states, has a grandparents statute that allows grandparents to petition for visitation.
There are, however, limits on these statutes. The United States Supreme Court has held that grandparents rights statutes may violate the Constitution to the extent that they interfere with a parent’s fundamental right to raise their child as they see fit.
In order to overcome the strong presumption that parents are acting in their child’s best interests when denying grandparent visitation, the grandparents would need to show that visitation would be in their grandchild’s best interests. If a grandparent desires visitation with their grandchild and wants to petition the court, they should consult with an experienced New York attorney.
Do I Need an Attorney for Help with Grandparent Visitation Rights?
If you are a grandparent in the State of New York who is seeking visitation rights with your grandchild, it is essential to consult with a child visitation lawyer in New York. This applies especially in cases where you have previously been denied visitation by the child’s parents.
Your attorney will advise you regarding the evidence you will need to provide, as well as your legal options and possible outcomes of your case. Your lawyer will file the petition, ensure all parties are served, and represent you during any court appearances.
