Grandparent Custody & Visitation

After raising a family of your own, becoming a grandparent is one way to continue the care and love for your extended family. Unfortunately, when grandparents are denied visitation or custody of their grandchild a sense of loss can set in and be overwhelming.  In New York, grandparents may have a legal right to custody or visitation of their grandchildren in certain circumstances. Although not a guarantee, courts will allow a grandparent to petition for visitation and custody.  The court will require you to present evidence that will demonstrate that circumstances exist for the Court to intercede. 

 

Parent vs. Non-parent

Parents have a constitutional right to raise their child as they see fit.  Therefore, a grandparent is considered to be a non-parent and must elevate their standing to that of a "parent" to proceed and demonstrate "extraordinary circumstances".  The Court will evaluate the evidence and apply a two prong test to determine if a grandparent should become the lawful custodian of their grandchild.

 

First, a grandparent must demonstrate that they have legal standing to participate in the proceeding. Legal standing means that court has determined that the grandparent has met the criteria to go forward to prove the second prong of the proceeding.  

 

Second, if they are able to establish that they do have legal standing, the court must determine it is in the best interest of the child for a grandparent to be awarded custody or visitation rights.

Grounds for Custody

In order to demonstrate that a grandparent has standing to obtain custody, they must demonstrate "extraordinary circumstances".  A grandparent should be prepared to demonstrate to the court one or more of the following grounds:

 

  • Abandonment

  • Parental unfitness

  • The death of a parent

  • Child abuse

  • Persistent neglect

  • Psychological bonding with the child

  • An extended disruption of parental custody

  • Surrender

  • or other extreme circumstances

Custody vs. Visitation

While a grandparent must establish they have legal standing for custody and visitation, the standards a slightly different.  For a custody application, the standard for intervening is "extraordinary circumstances". On the other hand, the standard for a visitation application is slightly different in that a grandparent must demonstrate "exceptional circumstances" 

Best Interests

Once a grandparent has met the first prong of either "extraordinary circumstances" or "exceptional circumstances the court will examine the child's best interest.  The best intrest standard is the foundation of all family court proceedings.  Given that this standard is found throughout family court proceedings there must be a checklist or list of factors for a court to determine when applying this standard, right?  Unfortunately not.  However, many factors which can be agreed upon may include the following list:    

  • The amount of time spent together.

  • The detriment or benefit to the child should custody or visitation be granted.

  • The stability of the child educational, social, medical needs.

  • The effect on the parent or parents of the child.

  • The ability to foster a relationship with the parents.

  • The preference of the child through the child's attorney or meetings with a judge.

  • The ability to provide and support the child's needs.

  • The age, general health, and ability of the grandparent to care for the child.

  • The environment in the home of the grandparent, the other members of the household.

  • The reasons that the parents have prevented or limited access to the grandparent. 

Alternatives to traditional litigation

It may be easy to think that a judge will be able to decide your case. Efforts to resolve issues of visitation without coming to court should be explored through negotiation among the parties. Traditional litigation should be used as a last resort.  Once parties are in court, emotions escalate, and feelings for one another are easily shattered. Ultimately, this leads to a judge who only interacts with your family for a relatively short period of time to determine the fate of your relationships with your family for a long time.

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If despite your best efforts, these alternatives do not work contact the Law Office of Martin Mohr. We are a client-focused firm that will protect your loved ones. If you need more information regarding grandparents rights, contact us at (718) 293-1542 to schedule an initial consultation. We will set up a telephone consultation, if necessary, and will meet with you at our office conveniently located across the street from Bronx family court

Call To Speak With A Lawyer Who Can Tell You Grandparents Legal Rights