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Decades Of Litigation Experience

WHEN NANA IS A NO-NO: GRANDPARENT VISITATION

by | Jan 21, 2021 | Family Law |

Generally, grandparents are a welcome presence in the lives of children. They can provide loving and reliable childcare, sage child rearing advice (although sometimes unsolicited), unconditional love, and an undeniable wealth of stories regarding family history. But….what if a child’s grandparents are none of those things, and may in fact be detrimental to the child’s well being? In the alternative, what if the grandparents can provide greater stability than the biological parents themselves, yet are prohibited from having any access to their grandchildren? The law has always been clear regarding the rights of biological parents in connection with visitation and custodial issues, and has determined that a biological parents has priority above anyone else. In connection with the rights of grandparents, Courts have long chosen to permit biological parents to determine who will and will not have access to their children. In 2000, the United States Supreme Court (in Troxel v. Granville) addressed the issue as to whether grandparents have visitation and/or custodial rights. Since that time, courts have been flooded with these types of applications, which carry with it a difficult burden of proof, as the courts still give great weight to parental preferences.

Despite this, factors such as animosity between the parents and grandparents is relevant, but alone, not enough to deny an application. In order for a grandparent to initiate a request for visitation (or custody), the appropriate petition must be filed in Family Court. Before doing so, the grandparents should consider whether they meet the legal criteria (known as the “two prong test”), as such a proceeding is likely to be emotionally and otherwise arduous. The first prong a grandparent must overcome is what is known as standing.” Simply put, this concept refers to whether the movant has a legal basis to pursue the relief requested. In the case of grandparent visitation (or custody), a movant will have standing if one or more of the following facts exist and can be established via the factual circumstances.:

• one or both parents died;

• the grandparents have a substantial existing relationship with their grandchildren, or

• the child’s parents have interfered with their efforts to establish or maintain a relationship.

If the grandparent cannot establish standing, then the proceeding is over and the application will be denied. Once standing is established, the court will endeavor to determine whether the second prong has been established. This determine seeks to ascertain whether visitation or custody with the grandparent is in the child’s best interests. In pursuing this inquiry, a court will consider factors, including but not limited to: the age of the child, the child’s wishes (depending on the age of the child), the mental and physical health of all involved, the geographical proximity between the child and the grandparents, the grandparents ability to care for the child during visits, the past and current relationship between the child and grandparents, as well as the parents and grandparents, and any other factor the court feels is relevant in connection with the child’s best interests. It goes without saying that if a grandparent needs to file a court petition to visit with his/her grandchild, the familial relationships are strained to say the least. As with any familial dispute, court intervention should not be the first choice, but if other avenues such as therapy and similar interventions have failed, or are not a viable option, filing a petition quickly, before too much time has elapsed since the grandparent has had a relationship with the child, is critical.