In the realm of family law, grandparents have certain legal rights in regard to custody and visitation of their grandchildren. The overarching term to describe the process of becoming a legal caregiver for a child that is not biologically your own is called kinship care. Grandparents can seek temporary and permanent custody of children who are their blood relatives if the parents are unable to nurture in the best interests of the child. The broad purpose of placing a child with a suitable family member is to avoid placement of that child in the non-relative foster care system.
In New York, there are over 100,000 kinship families where grandparents are available to serve as caretakers of their grandchildren. Many times, parents are suffering from substance abuse, mental health issues, or have Child Protective Services responding to reports of child abuse and/or neglect. If Social Services removes a child from the child’s custodian or parent, the Department must investigate whether the child has suitable relatives who should be given notice, who can apply to have the child placed in their home. This system provides a child with the opportunity to stay with family members versus placement in the foster care system.
In a landmark 2002 case, the United States Supreme Court held that parents have a fundamental constitutional right to the control and care of their children. To overcome this constitutional right, there must be sufficient evidence that it would be in the child’s best interest for the justice system to intervene in a parent’s right to raise and nurture their child. A formative New York Court of Appeals case, Bennett v. Jeffreys, establishes the findings needed by grandparents to assert custody rights over the parent. To establish standing for custody, grandparents must prove at least one of the following extraordinary circumstances to prevent dismissal of their case:
- Parental unfitness;
- Persistent neglect;
- Child abuse;
- Psychological bonding with the child; or
- Extended disruption of custody.
Grandparents have the burden of introducing evidence at trial in the form of testimony, documents, and even expert opinions to prove extraordinary circumstances and the best interest of the child. A successful assertion of the aforementioned findings will result in the legal transfer of custody from parents to grandparents.
However, grandparent visitation rights differ slightly from custody because grandparents must prove that one parent is deceased, or demonstrate that conditions exist which equity would see fit to grant grandparents visitation. To meet the burden of exceptional circumstances, grandparents must show that they have had a consistent and warm relationship with the child, or at the very least, have attempted to begin a relationship, which was ultimately prevented by the child’s parents and it is in the best interest of the child to visit with them. Conversely, parents would have to show that the grandparents are meddling with their care and control over their own child.
To prepare for possible litigation, grandparents should keep and gather documents that could help their case. Even further, Grandparents should be aware of potential witnesses who can be called to testify. Legal counsel is often needed to assist with custody petitions, visitation petitions, court appearances, and more. Family custody and visitation matters are complex and the above is a brief summary of the issues that may arise throughout the legal process.
For further assistance, please contact a HoganWillig attorney at 716.636.7600 or via email at firstname.lastname@example.org.