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Decades Of Litigation Experience


by | Dec 8, 2021 | Firm News |

By Hope Tuber

If you are a grandparent, what rights do you have to visit your grandchildren? The Court of Appeals in, In the Matter of E.S. v. P.D. addressed this issue.

In that case, husband and wife were married and had one child. Unfortunately, the wife was diagnosed with cancer. When the diagnosis was made, wife’s mother moved in to help her daughter with daily errands and other things like cooking, cleaning and caring for the couple’s son. The wife passed away and the decision was made that the grandmother would stay in the house to help raise the child while husband worked. For the next five years, the grandmother helped raise the child. At some point, arguments between the father and grandmother began regarding the best way to raise the child. As a result, the father asked the grandmother to leave and severely curtailed the visitation between the child and his grandmother. As visitation became less and less frequent, grandmother petitioned the Court for visitation. The father’s position was that the grandmother was not raising his son the way he deemed fit and was usurping his role as the father.

Domestic Relations Law §72(1) states that where either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to the 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 in respect to that child.

When a Court is faced with a petition from a grandparent requesting visitation, it first must find that the grandparent has standing to come into court in the first place. There is no automatic right for a grandparent to see their grandchild. The Domestic Relations Law only provides a vehicle for a grandparent to seek visitation. In order for a grandparent to have standing the Court must find one of two things exist. First, if one of the two parents has passed away, then the grandparents have standing. The other is a more of a “catch all” which states that the grandparents have shown equitable circumstances which dictate that they should at least be heard as to why they should have access to their grandchild.

In this case, since a parent passed away, the grandmother had standing and was able to petition the Court for visitation. Based on the facts in this case, specifically a five year relationship with the child where the grandmother was assisting in raising the child, the Court held that it was in the child’s best interests to continue this close relationship with the child. Despite this ruling, the Court was mindful of the father’s wishes and right to raise his son in a manner which he deemed proper. However, the Court also found that the fights and other allegations in which the father leveled against the grandmother were unsubstantiated.

In the circumstance where both parents are alive, the grandparents have a harder time establishing standing. In order to have standing when both parents are alive, the grandparent would have to show that equity dictates that they be heard in Court. What should a grandparent be able to show? Their best bet is to establish a long and close bond with the grandchild. The fact that there is an acrimonious relationship between the parents and the grandparents are not enough to establish or deny visitation. The key will be the relationship between the grandparent and the child before visitation is curtailed or denied. Even if you are able to establish standing, grandparents normally have a high hurdle to overcome in forcing visitation. The parental right to make decisions for their children and raise them in a manner they deem fit is paramount to raising children and will not be lightly disregarded.

Grandparent visitation is a complicated matter which should not be entered into lightly. Your case will depend on the facts and circumstances of your particular case. Assuming you have standing, preparing for the hearing is crucial. If you cannot amicably settle this matter and must seek judicial intervention regarding grandparent visitation, seek legal advice immediately.