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Do Grandparents Have Visitation Rights in New York?

grandparents visit

In New York State, grandparents have a legal right to petition the court for visitation rights under certain circumstances. These circumstances include:

  • One or both parents have died,
  • The grandparents have a substantial relationship with the grandkids,
  • If the parents have interfered with the efforts of the grandparents to establish or maintain a relationship with the grandchildren.

The legal right to visitation is limited to biological or adoptive grandparents and is not extended to great-grandparents or other relatives in the extended family, regardless of how close their previous relationships were.

As with most decisions regarding children, the standard used by the courts is whether a decision is in the child's best interest. This standard is also used in cases where grandparents are seeking visitation right. According to the law, "prior to issuing any Order of Visitation, the Court shall search the statewide registry of Orders of Protection, the Sex Offender Registry, and the Family Court's child protective and warrant records relative to all parties requesting custody and visitation." [1]

When grandparents bring a case for visitation, the burden of proof to show that court-ordered visitation is warranted and in the child's best interest is on the grandparents bringing the lawsuit. The grandparents must first prove they meet the criteria for court-ordered visitation to be considered. If the parents have passed on, the court automatically grants the determination. If the case is being brought based on one of the other two criteria, then grandparents must prove they had a substantial relationship with the children or the parents have interfered with the grandparent in establishing or maintaining a relationship.

Once the appropriate legal grounds are established, the grandparents must establish that an ongoing relationship is in the children's best interest. When making this determination, the court will take several things into account, including:

  • The age of the grandchildren,
  • If the grandchildren are mature enough to express their preferences, the children's wishes are considered,
  • The physical distance between the children's home and the grandparent's home or where visitation will occur,
  • The mental and physical health of anyone involved, including the grandparent, parents, and children,
  • The past and current relationship between the grandparents and grandchildren,
  • Nurturing skills of the grandparents and their attitudes toward the parents.

The court will also consider the parents' wishes and will not generally want to undermine the parents' rights to decide what is in the best interest of their children. While the feelings and preferences of the parents are strongly considered, parental objections to visitation are not the only variable considered by the court and, on their own, may not be enough for a grandparent's petition to be denied. If the custodial parent does not consent to visitation, the court may proceed with a hearing to determine whether grandparent visitation is in the children's best interest.

While grandparent visitation is not an automatic right in New York State, the courts will recognize the benefits of a relationship between grandparents and grandchildren, including child care, education, child development, and even the love and kindness shown by grandparents in a normal and healthy relationship with grandchildren.

Since one of the circumstances that would allow grandparents to petition the court for visitation is a situation where the parents or custodial parent are actively seeking to prevent a grandparent/grandchild relationship, the court will appoint separate representation for the children, called an AFC or Attorney for the Children.

The court may also order social services agencies or a mental health professional to investigate and report on the individual parties.

Regarding the grandparent's visitation, there is also an option for the parties to enter into mediation. Mediation is an option in cases such as this so the parties can discuss their needs and wishes in an open and safe environment and attempt to reach an agreement that is in the child's best interests.

As mentioned, New York State does not allow extended family outside of grandparents to seek court-ordered visitation. However, another immediate family member may seek visitation. Siblings and half-siblings (or step-siblings) may petition the court for visitation with other minor siblings. If the sibling seeking visitation is a legal adult, they may petition the court independently. Siblings who are minors may seek court-ordered visitation through a parent on their behalf.

A divorce is a serious step signaling the end of a relationship between spouses. However, that does not mean that a child's relationship between other siblings and grandparents also needs to end. The process may be extended and, at times, challenging. Still, New York State recognizes that these relationships, if healthy and positive, are beneficial to the children, even if against the wishes of one or both parents.

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