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Grandparents' Right to Visitation with their Grandchildren

Visits with grandparents are a precious and integral part of a child's experience. The loving and nurturing relationship between grandparents and a grandchild often provides the child with intangible benefits that cannot be derived from other relationships. Increasingly, however, grandchildren, often the product of broken homes, have been deprived of contact with their grandparents. The legislature and courts, cognizant of the importance of the grandparent-grandchild relationship, have implemented procedures by which grandparents can seek visitation with their grandchildren.

These laws, however, do not give a grandparent an absolute or unqualified right to visitation. Instead, as in all cases involving child custody and visitation, the primary inquiry is "what is in the best interests of the children." It is the grandparent's burden to show that it is in the best interest of the child for the grandparent to have visitation.

Before the court will even consider whether visitation is in the best interests of the child, the grandparent must show that he or she has "standing" to seek visitation. As written and interpreted in New York, for instance, only a natural grandparent or grandparent through adoption has standing to seek visitation with a grandchild. The statute is severely limited in scope and the New York courts have not been expansive in their construction of this law. For example, it has been held that other family members (e.g., uncles and even great grandparents) lack standing to seek visitation with children. In at least one case, a court held that a natural grandparent, who renounced her parental rights to her daughter, the mother of her grandchild, lacked standing to seek visitation with the grandchild.

In New York, by statute, a grandparent only has standing to seek visitation with a grandchild if the child's parent is deceased "or where circumstances show that conditions exist which equity would see fit to intervene." Therefore, where a child's parent has died, the grandparent has standing to seek visitation, which will be granted if the court finds that visitation is in the best interests of the child. If, however, both parents are alive, the grandparent seeking visitation must show some circumstance justifying judicial intervention.

There are no "hard and fast" rules to determine when circumstances exist so as to require courts to impose their equitable powers to grant a grandparent visitation with their grandchildren. Every case must be determined upon its own facts and circumstances. However, the published cases are instructive and do present some guidance to those situations where visistation will be ordered.

The nature and extent of the grandparent-grandchild relationship is the focus of the Court's inquiry. The longer and stronger the bond between grandparent and grandchild, the greater the likelihood a court would confer visitation rights on a grandparent. Conversely, the more superficial the relationship, the less likely visitation rights will be conferred

Another factor examined by the court is the basis of the parent's objection to permitting the grandparent to have visitation with the child. Mere animosity between the grandparent and parent may be an insufficient basis to deny a grandparent visitation. However, where a court finds that the grandparent's relationship with the parent and/or the child is dysfunctional, visitation may be denied.

In establishing the relationship with the grandchild, the New York Court of Appeals (New York's highest court) had said

It is not sufficient that the grandparent allege love and affection for the grandchild. They must establish a sufficient existing relationship with their grandchildren, or in cases where that has been frustrated by the parents, a sufficient effort to establish one so that the court perceives it as one deserving the court's intervention. If the grandparents have done nothing to foster a relationship or demonstrate their attachment to the grandchild, despite opportunities to do so, then they will be unable to establish that conditions exist where 'equity would see fit to intervene.'

The Court continued to point out, "The evidence necessary will vary in each case but what is required of the grandparents must always be measured against what they could reasonably have done under the circumstances." Where, for instance, a grandfather made no attempt to have contact with his five year old granddaughter from the time she was two weeks old, and had alienated his own children, the grandfather failed to establish conditions where equity would see fit to intervene. Similarly, where the court found the grandparents' effort to establish a relationship with the grandchild to be superficial or contrived, they have refused to use their equitable powers to order visitation.

On the other hand, where a grandfather demonstrated a concerted effort to establish a relationship with his granddaughter immediately upon learning of her birth, by sending gifts, writing letters, making telephone calls and seeking the aid of third party intermediaries, all to no avail, the court found that he did all he could do under the circumstances to establish a relationship with his grand-daughter. While the court noted that the grandfather did not have an existing relationship with the grand-child, it took notice of the grandfather's efforts to establish the relationship and found that he had standing to seek visitation.

Therefore, in the absence of an existing grandparent/grandchild relationship, courts will measure what a grandparent did to establish a relationship against what they could reasonably have done under the circumstances. No court will intervene where the grandparent has made no effort to establish a relationship with the grandchild.

Assuming that the grandparent established standing to seek visitation, the court will determine if the visitation is in the best interests of the child. In determining the best interests of the child, the court will undertake an exhaustive examination of all the relevant facts and circumstances, which will, by necessity, include the grandparents inter-personal relationships, and, in particular their relationships with their own children, particularly the grandchildren's parents.

In one extreme case, it was found not to be in a child's best interest to have visitation with a grandmother, who urged the mother to give the child up for adoption and, when the mother's refused to so, barred the mother and child from living in her house. In another extreme case, the court left it up to the grandchildren to decide if they wanted to have visitation with grandparents, who denounced them when they revealed that they had been sexually abused by their parents.

In a more typical case, the grandchildren's parents, both objected to the maternal grandparents having visitation with their children since the relationship between parent and grandparent deteriorated. As the Court found, family get-togethers were subject to "stress, tension and uncertainty" due to the grandfather's desire to be controlling and make demeaning comments to the parents and grandchildren. Making matters worse, the grandfather refused to accept responsibility for the deterioration of the family's relationship. For this reason, the Court found that it was not in the grandchildren's interest to have visitation with their grandparent's.

Undoubtedly, the fact that the children in the foregoing case came from an intact family and that both parents objected to the visitation with the grandparent's weighed heavily in the court's finding. For, as the court noted, "As fit parents, respondents have the right to choose with whom their children associate. . .The record establishes that respondents acted reasonably on the basis of legitimate concerns for the welfare of their family."

While the existing law, as written, is applicable to grandparents seeking visitation with grandchildren of intact families (where the grandchild's parents are not divorced and are both alive), a number of Courts have questioned the constitutionality of this application. It is claimed that such application constitutes an invasion upon the parents right to privacy concerning the manner in which they raise their children. This issue remains unsettled.

In summary, in order to have and maintain visitation with grandchildren, the grandparent should attempt to build meaningful relationship with the child as soon as possible. If the grandparent's efforts to have visitation are rebuffed by the child's parent, the grandparent should document his or her attempted contacts and continue to send birthday and holiday cards and presents to the grandchild and take other reasonable steps to maintain the relationship with the grandchild. If visitation cannot not be amicably arranged, the grandparent should consult with an attorney for an explanation of their rights and the local laws regarding visitation.

About the Author:

The Law Offices of Daniel E. Clement is a full service law firm, conveniently located in the Empire State Building. The firm is able to service a wide variety of legal needs including Family Law, Trusts and Estates, Commercial and Real Estate Law.

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