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Matrimonial and Family Law Blog

Thursday, March 31, 2016

What You Should Know About Grandparent Visitation Post-Divorce

Historically, New York and federal laws have held preeminent the rights of a father and mother to direct the upbringing of their children. In the words of the 1936 New York Supreme Court, “the vast majority of matters concerning the upbringing of children must be left to the conscience, patience, and self-restraint of father and mother. No end of difficulties would arise should judges try to tell parents how to bring up their children.” (People ex. rel. Sisson v. Sisson, 271 N.Y. 285 (1936)). The U.S. Supreme Court has held similarly in a string of parents’ rights cases dating back to the turn of the century.

However, how does the law address the scenario in which third parties -- with a seemingly strong bond and relationship to the child -- seek to advance rights to visitation and custody over minor children. Namely, how does New York address the common scenario of grandparent visitation in light of the constitutionally-protected exclusive rights described above?

Grandparent visitation was created by statute in New York in the 1960’s. At that time, grandparents only  had “standing” to petition for visitation if the natural parents had passed away and the court determined it was in the child’s best interests to award the visitation.

Since then, grandparents’ rights have been significantly expanded, including the 2003 expansion of third-party custody rights to grandparents and extended family/friends alike.

Under current guidelines, a grandparent interested in visitation must meet three requirements:

  1. The grandparent has “standing” to sue for visitation, which is also referred to as the “right to be heard.” To establish standing, one or both of the child’s parents must be deceased or the case involves “extraordinary circumstances.”
  2. The court has jurisdiction to hear the case (i.e., the child is located in New York).
  3. It is in the child’s best interests to engage in visitation with the grandparent. This inquiry involves a number of factors, including the relationship between the child and grandparents, the child’s wishes (if age appropriate) and the grandparents’ backgrounds.

If you are concerned about grandparent visitation attempts pursuant to your divorce, please contact an experienced child custody attorney.  


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