Westchester County Child Custody and Visitation Lawyers for Grandparents

Grandparent Visitation in New York Family Courts

Under NY Domestic Relations Law (DRL) Section 72, grandparents have a right to file a petition seeking visitation with grandchildren.

Circumstances where a grandparent may file a petition for visitation:

1. The parent or parents will not permit you to visit your grandchild
2. If your grandchild is under the care and control of the Department of Social Services

It is important to note that if you already have a visitation order, then you have a right to enforce the visitation order by filing an enforcement petition.

Two-Part Test for Grandparents in New York Family Courts

When a grandparent files a petition for visitation, the Family Court will complete a two-part test. First, the Family Court Judge must decide whether the grandparent has “standing.” Second, the court must determine whether the visits are in the best interests of the child.

Standing

The first issue that must be established is standing. A grandparent may establish “standing” to continue with a request for visitation when either:

1. one or both of the parents has died or
2. when "equity would see fit to intervene."

“Equity would see fit to intervene” has been defined by Family Courts to mean when grandparents have previously had a relationship with their grandchildren or have been prevented by the parents from having such a relationship.

Specific factors used by the courts include: (1) the strength of the family and the nature and bias of the parents' objection to visitation, (2) the nature and extent of the grandparent-grandchild relationship, (3) whether the grandparents have a “sufficient existing relationship” with the child (or have at least made a sufficient effort to establish one).

Grandparents may seek visitation even when both parents are against the grandparent visiting. In such an instance, animosity between the parents and grandparents is not enough. The animosity must rise to the level of "family dysfunction.” In other words, simple dislike of the grandparents by the parents will not allow the parents to succeed in court. Additionally, in circumstances where a parent’s rights have been terminated, such termination does not act as an absolute bar to seeking visitation with a grandchild by a grandparent.

Best Interests of the Child

Once standing is established by the grandparent, the court must then decide whether it is in the child’s best interests to have visits with the grandparent. There is not an established list or set of guidelines that New York Family Courts will consider when determining the best interests of the child. However, typical factors that the court may consider include:

1. The reasons the parent objects to visitation
2. The child’s wishes
3. The previous relationship the grandparent had with the child
4. The benefit to the child by visiting with the grandparent
5. The grandparent’s feelings towards the parent.

Grandparent Custody In Westchester County Family Courts

For a grandparents and other non-parent to become legal custodians of children there must be:

1. The consent of the parents or
2. The existence of an extraordinary circumstance.

Extraordinary circumstances have been shown in cases involving abuse, persistent neglect, abandonment, an extended disruption of custody, or other similar circumstances.

One extraordinary circumstance is applicable only in petitions filed by grandparents. Pursuant to NY Domestic Relations Law Section 72, when a grandchild resides in the grandparent’s home for two or more years, that is deemed an “extended disruption of custody” and will be considered an extraordinary circumstance.

Procedurally, the court will first conduct a hearing to find out whether the extraordinary circumstance exists. Only after the Family Court has determined that an extraordinary circumstance exists will there be a trial to decide custody based on a child’s best interests.

If you are a grandparent seeking custody or visitation with your grandchildren, Contact the Westchester Family Law Attorneys of Riebling & Payton, PLLC. We will help you re-establish your connection and relationship with your grandchildren. 

Call for a Free Consultation (914) 712-6878.