VisitationGrandparent Visitation: Intact Family Denies Visits to Mentally Ill Grandmother

September 8, 2008

I am back to blogging after a short break during my summer vacation.

While I was away, the Appellate Division in the case Karr v. Black, denied a grandparent visitation with her grandchild. The Court upheld a lower court’s finding that an intact family’s’ refusal to permit a mentally ill grandmother to have visitation with their child was sound; because the grandmother had no relationship with the child, there was no need for further inquiry to determine whether visitation would be in the best interest of the child.

In deciding this case, the court engaged in an extensive discussion of the law concerning grandparent visitation.

Analysis appropriately begins with the observation that “the courts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one” (Matter of E.S. v P.D., see also Troxel v Granville,

In the absence of automatic standing based on the death of one of the child’s parents, the court must make a threshold determination that the grandparent has “established the right to be heard” (Matter of Emanuel S. v Joseph E., 78 NY2d 178, 181 [1991]) by demonstrating the existence of “circumstances in which equity would see fit to intervene.”

Only after standing has been established is it necessary or permissible to “determine if visitation is in the best interest of the grandchild” see Matter of McArdle v McArdle, 1 AD3d 822, 823 [2003]). In exercising its discretion to confer standing on the grandparent, the court is obliged to “examine all the relevant facts” among which are whether the family is intact, “the nature and basis of the parents’ objection to visitation,” and “the nature and extent of the grandparent-grandchild relationship.”

The Court was not persuaded by the grandmother’s argument that that reason she did have a relationship with the children was because she was prevented from doing so by the child’s parents. The Court distinguished a parent’s effort to frustrate visitation from an effort to protect the child.

In this case, the parents were justified in limiting the grandmother’s access to the grandchild.  For not only did the grandmother suffer from mental illness, which required repeated hospitalizations, she also disregarded orders of protection, requiring her to “stay away” from her adult children.

Under these circumstances, the Court concluded, “the parents’ actions to prevent contact between petitioner and their child was legally cognizable as protective, not obstructive.”

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