Seeking Grandparent Visitation Rights Under New York Law

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Parents have a fundamental right to raise their children, and to make decisions regarding their health, education, and welfare. This includes the right to decide whether other individuals, including other family members, may visit with the children. New York law gives parents broad discretion to make these decisions. Grandparents may petition for visitation rights, but only in limited circumstances. A New York appellate court recently reviewed the legal standard for an order granting visitation rights to grandparents in Troiano v. Marotta. The court affirmed an order denying the grandparents’ petition based on two issues:  standing to sue and the child’s best interest.

According to the U.S. Supreme Court’s 2000 ruling in Troxel v. Granville, if a parent is generally fit to make decisions for a child, courts must give “special weight” to their decision to deny visitation rights to a non-parent. Troxel struck down a Washington state statute that allowed anyone to petition for visitation rights, and it authorized courts to grant visitation rights if they found that visitation would be in the child’s best interest. The case specifically involved the paternal grandparents of two children who sought to continue their relationship with the children after their son, the children’s father, committed suicide. The children’s mother informed them that she was limiting their visits with the children, and they filed suit under the visitation statute.

The Washington Supreme Court held that the statute “unconstitutionally infringe[d] on the fundamental right of parents to rear their children.” The U.S. Supreme Court agreed, citing the Due Process Clause of the Fourteenth Amendment. It held that the lower courts should have given “special weight” to the mother’s decision and noted that she did not seek to cut off access entirely. The court did not define “special weight,” but it seems to indicate a high level of deference. State laws regarding grandparent visitation have had to adapt to this ruling.

The Appellate Division’s order in Troiano does not provide many details about the facts of the case. The children’s mother, according to the court, asked the grandfather to visit the children, but she stated that she did not want the grandmother to participate in any visits. Because of this, the grandfather refused, and he and the grandmother filed a visitation petition.

Grandparent visitation requires a two-part inquiry in New York:  whether the grandparent has standing, and whether visitation would be in the child’s best interest. Under § 72(1) of the New York Domestic Relations Law, a grandparent may have standing to commence a proceeding for visitation with a minor child who resides in the state if either or both parents are deceased, or if “circumstances show that conditions exist which equity would see fit to intervene.” Courts have considerable discretion in determining whether such conditions exist.

In Troiano, the court held that the grandfather lacked standing because he “failed to demonstrate that the mother frustrated his visitation with the grandchildren.” The grandmother, it held, had standing because of the mother’s refusal to allow her to see the children. It supported the family court’s conclusion, however, that visitation with the grandchildren would not be in the children’s best interest.

For more than 30 years, Ingrid Gherman has fought for the rights of her clients in child custody proceedings in New York City. We help people navigate the New York family court system, which is often complicated and difficult, based on their particular needs and goals. To schedule a confidential consultation with a member of our team, contact us today online or at (212) 941-0767.

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New York Courts Consider Questions of Jurisdiction in Paternity, Child Custody Proceedings, New York Divorce Attorney Blog, March 31, 2015

Custody Disputes Between Parents and Non-Parent Relatives in New York, New York Divorce Attorney Blog, January 8, 2015

Daughter’s On-Again-Off-Again College Attendance Not Enough to Delay Sale of New York Marital Residence, New York Divorce Attorney Blog, December 29, 2014

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