Are Grandparents Automatically Entitled to Visit with Their Grandchildren?

by Nicholas A. Pelosino, Jr., Esq.

We all know that grandparents do many things for their grandchildren and these meaningful relationships are as varied as the people in them and the families of which they are a part. Grandparents may become caretakers when needed; grandparents can have special teaching roles; some grandparents are all about doing fun and meaningful activities with their grandchildren; and some grandparents simply love to spoil their grandkids with love, affection, and attention.

When a positive grandparent-grandchild relationship is interrupted by a parent cutting off contact, both grandparent and grandchild can suffer. Sometimes those involved can talk through the problems and come to a solution that allows the relationship to continue, but not always.

In New York, grandparents have a right to seek assistance of the court to obtain visitation with their grandchildren. As with any legal issue dealing with children, the test is always what is in the “best interest of the child”.

A grandparent may pursue visitation when one or both of the grandchild’s parents are deceased or when the “circumstances show that conditions exist which equity would see fit to intervene …” This is usually accomplished by the grandparents filing a petition for visitation in family court seeking visitation with their grandchild or grandchildren.

In some ways, New York’s grandparent visitation laws are more liberal than those of some other states. For example, some states only allow grandparental visitation requests in extreme situations, like the death of one or both of the child’s parents or a similarly grave circumstance. However, New York allows grandparents to petition when both parents are alive based on equity, meaning fairness.

New York may also allow grandparents to request visitation when the parents’ parental rights have been terminated or even when the child has been adopted by another family.

But filing a petition for grandparent visitation does not guaranty it will be granted. Grandparents in New York do not have an automatic entitlement to visitation with their grandchildren. The court must first look at whether the grandparent has what is called ‘standing’ to proceed, which essentially means a legally protected interest which the court will determine by looking at the “nature and extent” of the grandparent’s existing relationship with the grandchild and whether it is sufficient enough for the court to consider preserving the relationship through visitation.  Standing is generally recognized where the grandparents had maintained substantial ongoing contact with their grandchild from the time of the grandchild’s birth until contact was terminated by the parent.  If the parents have objected to contact, the court will look at why and at whether the grandparent made reasonable attempts at continuing the relationship under the circumstances.

For example, a parent may not have allowed physical contact, but the grandparent may have continued to try to sustain the relationship by having sent cards and gifts or having kept phone or electronic contact with the grandchild.

If the court finds the grandparent has standing, it will then determine whether grandparental visitation is in the child’s best interest. The judge will consider the unique circumstances of each family and grandchild. For example, New York courts have considered the nature of the relationship and whether the grandparent “supports or undermines” the child’s relationship with the parents, including whether the grandparent’s relationship with the parents is a negative one.

Finally, the court must give special weight to a fit parent’s choice to keep his or her child away from a grandparent, considering the parent’s constitutional right to care for the child and make parental decisions.

Having been involved with hundreds of grandparent visitation cases over the last 26 years, I can tell you from experience that grandparents and their children should try to do their best to resolve their particular conflicts short of placing their “dirty laundry” in front of a judge. Much too often I have seen family relationships forever broken by petty and insignificant arguments between family members which usually always ends with the grandchildren being adversely affected.    

New York grandparent visitation law is much more complex than this introduction can cover. Any grandparent who is considering pursuing a visitation order (or custody order, if appropriate) should speak with an experienced lawyer in this area of the law.

Written by attorney, Nicholas A. Pelosino, Jr., Esq.

Serving our community for over 26 years