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What rights do grandparents have during a divorce?
In New York, if a grandparent wants to go to supreme or family court and seek custody or visitation of their grandchildren, they need to make certain allegations in their initial filing with the court:
- If the grandparent is seeking custody, (s)he needs to allege that either (a) one of the parents of the child has died; or (b) extraordinary circumstances exist that should allow the grandparent to ask for custody.
“Extraordinary circumstances” are narrowly defined, and “…the courts and the law would, under existing constitutional principles, be powerless to supplant parents except for grievous cause or necessity.” Bennett v. Jeffreys, 40 N.Y.2d 543, 546, 356 N.E.2d 277, 281 (1976). “Examples of cause of necessity permitting displacement of or intrusion on parental control would be fault or omission by the parent seriously affecting the welfare of a child, the preservation of the child’s freedom from serious physical harm, illness or death, or the child’s right to an education, and the like.” Id.
In other words, there better be something serious going on with the parents if a grandparent hopes to gain custody of a child. Serious drug abuse issues, the incarceration of both parents, or debilitating illnesses of both parents might qualify as “extraordinary circumstances.”
- New York’s statute appears (at first glance) to make it a little easier for a grandparent to seek visitation, but that isn’t really the case. If a grandparent is seeking visitation, (s)he needs to allege that either:
(a) one of the parents of the child has died; or
(b) “extraordinary circumstances “exist, or
(c) circumstances exist in which a court of equity would see fit to intervene. What exactly does that mean? Good question.
It’s not enough for a grandparent to say “I love my grandchild, and it’s only fair that I get to see them.” There needs to be something more, because the child’s parents have a constitutionally presumed due-process right to make visitation decisions for their child. A parent’s ability to rear their child without interference is a fundamental right, and a court of equity needs to give “special weight” to the decisions of the parents. Therefore, if the parents are capable of parenting, a grandparent needs to have a compelling reason for the court to interfere with that right. One example might be that they enjoyed an unusually close relationship with the grandchild, but that, through no fault of their own, the grandchild’s custodial parent has refused visitation.
Grandparent rights is not a simple area of the law. It draws on Constitutional due process principles, Supreme Court decisions, and New York State case law interpreting sections of both the Family Court Act and the Domestic Relations Law.
Our attorneys have first-hand experience working on grandparent rights issues. Contact us to schedule a consultation. We charge a flat rate for initial consultations so that we can meet, discuss your case, and talk about a strategy. (585) 485-0025