In many of our families, grandparents play a special role in the lives of our children. They are the source of free babysitting and frequently they are intimately involved in our children's lives. But what happens when there is discord between grandparents and their children and they are prevented from seeing their grandchildren? Do they automatically have a right of visitation. The answer in New York is no. If the parents refuse visitation, a grandparent must go to court and he may not win.
Under N.Y. law, a grandparent's right to petition for visitation is restricted to only two circumstances. When either parent of the grandchild has died, a grandparent has an absolute right to petition. If both parents are living, a grandparent has standing to request visitation rights only if he can establish circumstances in which equity would see fit to intervene. This means that the grandparent has to show that he has maintained a close and long term existing relationship with the child or tried to do so and was prevented by the parent. Where contact has been sporadic or just involved sending birthday and holiday cards, the court will not grant the petition. Allegations of love and affection are not enough.
Even if a grandparent has standing to petition for visitation, he still has to show that visitation is in the best interests of the child. Where both parents who are still married to each other strongly object to the grandparent's visitation, it will probably be denied. The N.Y. Court of Appeals (Article by the New York Sun) has held that there is a strong presumption that the parents' wishes governs regarding the best interests of the child and this creates a high hurdle for petitioning grandparents to overcome.
If, as a grandparent, you foresee possible visitation problems in the future, you should try to be involved in your grandchild's life as much as is reasonable. If the parents try to restrict your contact, you should document you attempts to do so.
Kim Steven Juhase, ESQ.
Partner, Novak Juhase & SternCheck us out on Facebook, LinkedIn, and at njslaw.com