GRANDPARENT VISITATION

What are the rights of grandparents to visitation?

Grandparent visitation rights are governed by statute (the New York Domestic Relations Law § 72) and by cases interpreting the statute. The grandparent(s) asking for visitation has the duty to provide sufficient evidence to show a legal right to court-ordered visitation and that the proposed visits are in the child's best interests.

First, a grandparent must prove that they have “standing” to seek visitation based on either: (1) the death of the parent(s) of the grandchild; or (2) “equitable” circumstances. In considering a request by grandparents for visitation rights, the court will consider the nature and extent of the grandparent/grandchild relationship. If the parent(s) objects to visitation, the court will take into account the nature and basis for a parent's objection to visitation. In cases where the grandparent's relationship is frustrated by the child's parent(s), the grandparent is required to demonstrate a sufficient effort to establish a relationship with the grandchild, such as reaching out to the child's parents, requesting to visit with the child, sending cards/gifts, or having phone/electronic contact with the grandchild.

Second, after demonstrating to the court “standing to seek visitation,” a grandparent must then establish that visitation is in the best interests of the grandchild. Among the factors to be considered are: (1) whether the grandparent(s) and grandchild have a pre-existing relationship; (2) whether the grandparent(s) supports or undermines a grandchild's relationship with the child's parents; and (3) whether there is any animosity between the child's parents and the grandparent(s). The judge will consider the unique circumstances of each family and grandchild.

A grandparent may apply for visitation by commencing a special proceeding or by applying for a writ of habeas corpus (which is an order issued by the court) to have the grandchild or grandchildren brought before the court. The court, by order, after due notice to the parent or any other person or party having the care, custody and control of the grandchild or grandchildren, may provide such directions for visitation by the grandparent(s) as the best interest of the child may require. The court may decide to award visitation rights to both or neither of the paternal and maternal grandparents, or to only one set of grandparents. The law only applies to biological or adoptive grandparents and does not extend to great-grandparents or other relatives.