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Grandparent Visitation – Know Your Rights

December 15, 2008

Far more often than not, grandparents play a special role in the lives of their grandchildren. In recent years, many grandparents have become increasingly involved in their grandchildren’s lives, from seeing them on a regular basis to caring for them on a full time basis, if a parent is unable or unwilling to care for the child. Sometimes, however, situations develop where grandparents are denied the right to see their grandchildren. Historically, grandparents lacked any legal right to visit and to communicate with their grandchildren when such contact was forbidden by the parents. However, lawmakers have increasingly recognized the need to preserve the beneficial relationship between children and their grandparents, and as such, at least forty-eight states have enacted various statutes allowing grandparents the right to petition for visitation under certain circumstances. For instance, New York State, which takes a paternalistic approach, recognizes that visits with grandparents can be a precious part of a child’s life, providing benefits that cannot be derived from any other relationship.

The usual situations in which grandparents petition for visitation rights are presented by cases in which grandparents have been deprived of contact with their grandchild because of the death of their child, the divorce of their child or the adoption of the grandchild. In New York, grandparents also have the right to petition for visitation where conditions exist which support the need for judicial intervention, including situations where the nuclear family is intact.

It should be noted, however, that the various grandparent visitation statutes across the country do not indiscriminately mandate visitation rights — as that would be a contradiction to the stronger and more predominant rights of the parents to raise their children as they see fit. Instead, the laws merely serve as procedural vehicles that give grandparents the opportunity for obtaining access.

In New York State, the process for obtaining visitation rights can be summarized in two steps. The first step involves a determination of whether a grandparent has standing to seek visitation. Generally, a grandparent can automatically seek visitation when a parent passes away. Alternatively, grandparents can seek visitation when equitable circumstances exist warranting court intervention. In making this determination, the Court must consider the fact that a parent has objected to the grandparent/child contact and assess the nature and basis for the objection. Further, the grandparent must establish an existing relationship with the grandchild or, minimally, a sufficient effort to establish one, and thus deserving of the court’s protection.

Once the Court finds that a grandparent has standing to pursue visitation with his/her grandchild/ren, the next inquiry made by the Court is whether an order of visitation is in the best interests of the child. There is no set standard for what is in a child’s best interest. Instead, each individual case involves an objective independent evaluation, where the court adequately assesses all of the circumstances for and against grandparent contact, including the effects such visitation will have on the child/ren. The court can consider parental objections as well as any preferences/objections raised by the grandchildren; however, the determinative factor overall will be what effect mandated visitation would have on the child’s well being.

It is unfortunate for both grandparent and child when circumstances do not permit such a normal loving relationship to develop. As stated by one New York Court, “a child cannot be loved by too many people.”

However, prior to seeking court intervention, grandparents are urged to work out some visitation arrangement on a voluntary basis with the children’s parents. Not only could a voluntary arrangement alleviate the likelihood of increased animosity between the parties caused by court action, it may also greatly reduce the risk that the children will be indirectly or directly exposed to the conflict. Nevertheless, in the event an agreement cannot be reached with the parents, it is important for grandparents to understand their rights to continue a relationship with their grandchildren. In all circumstances, the paramount concern of the all parties involved should be to consider the needs, interests and development of the children.