Over the hills and through the woods may be the poetic way to get to grandma’s house, but when one or both of a grandchild’s divorced parents don’t want their child to pay her a visit, is she out of luck? Not necessarily.
The ripple effects of a divorce hit more than just parents and children. Other family members such as grandparents who have developed close relationships with those children can find themselves caught in the switches of the parents’ animosity or resentment of each other.
Petition for Visitation
In situations where grandparents are denied access to their grandchildren, New York law does provide a means for them to petition the court for visitation rights.
Section 72(1) of the Domestic Relations Law states that:
"…where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and . . . the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child."
A grandparent’s right to visitation is neither absolute nor presumed. In fact, when one parent objects to allowing visitation, the presumption is almost the opposite. As the New York Court of Appeals noted: “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..
However, that same court added that “while the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation.”
“Equitable Circumstances” Establishing Right to Be Heard on Visitation
When grandparents seek visitation under Section 72(1), a court must undertake a two-part inquiry. "First, [the court] must find standing based on death or equitable circumstances"; and "[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild" Emanuel S. v. Joseph E..
The “equitable circumstances” that would give a grandparent standing to petition for visitation are not defined in Section 72(1). One court outlined the analysis by first noting that “the nature and basis of the parents' objection to visitation are among the several circumstances which should be considered by courts deciding the standing question.” Id.
The other primary factor is “the nature and extent of the grandparent-grandchild relationship”:
“It is not sufficient that the grandparents allege love and affection for their grandchild. They must establish a sufficient existing relationship with their grandchild, 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." Id.
If you are a parent or a grandparent involved in a dispute over visitation rights, we can help. Clement Law provides experienced, compassionate representation on all matters relating to divorce; including issues relating to visitation. Please call Clement Law at (212) 683-9551 or fill out our online form to arrange for a consultation.