The New York provisions regarding grandparent visitation rights are among the briefest in the 50 states, yet they are not easy to understand. For one thing, the provisions are vague. For another, the language is more legalistic than that of some states.
Those researching New York grandparent visitation will encounter a paradox. One attorney claims that New York State awards visitation to grandparents more often than any other state.
Another attorney claims that New York statutes are among the strictest in the United States. A quick look at New York statutes will reveal why.
The Question of Standing
Basically grandparents seeking visitation in New York must have standing to sue. NY law mentions only two situations in which grandparents may have standing, one clear-cut and one very broad. First, the law provides for grandparent visitation if at least one parent is deceased. That's the clear-cut situation. The only other condition mentioned in the statute is "where circumstances show that conditions exist which equity would see fit to intervene." This is the part that is not so clear-cut, but more enlightenment is provided in the next part of the law.
Grandparents can seek visitation when "extraordinary circumstances" exist. One such circumstance is an "extended disruption of custody." This is defined as a time when the parent voluntarily gave up "care and control" of the child and the child lived with the grandparent for a period of 24 months or more.
The law goes on to say that the court may find that "extraordinary circumstances" exist if this period of grandparent care lasted less than 24 months.
The law mentions no other extraordinary circumstances, but some courts have considered neglect or abuse by parents or substance abuse by parents as reasons to grant visitation to grandparents.
As in all of the 50 states, visitation must be in the best interest of the child. New York does not specify how best interest should be determined, but certain best interest factors appear over and over in state statutes. It is reasonable to assume that the court looks at factors such as these.
The law also states that parties have the right to enter into "consensual" agreements without the presence of "extraordinary circumstances." In other words, agreements reached by grandparents and parents independently of the court system do not require that unusual circumstances be present.
Some Important Court Cases
The landmark U.S. Supreme Court case of Troxel v. Granville generally increased the difficulty of winning grandparent visitation. The justices found that decisions made by "fit parents" are presumed to be in the best interests of their children. That means that in grandparent visitation cases, the parents are presumed to have made the correct decision in cutting off contact with grandparents. When a case goes to court, the burden of proof is squarely upon the grandparents.
Troxel v. Granville had an impact on cases in New York State. Law professor Stephen A. Newman comments, "States like New York, with broad statutes that speak vaguely of 'equity' and 'the best interests of the child,' must now pay more serious attention to the need to justify the use of governmental power in the constitutionally protected private realm of family life." (See Five Critical Issues in New York's Grandparent Visitation Law After Troxel v. Granville.)
Here brief summaries of some post-Troxel cases:
Canales v. Aulet. The appeals court denied a grandmother visitation with a grandchild, citing the grandmother's "disruptive and sometimes violent propensities," and stating that "equity did not require intervention."
Wilson v. McGlinchey (2003). In this case the parents and grandparents, in spite of having a very acrimonious relationship, had entered into a mutual agreement to let the grandparents have eight hours of visitation monthly with a granddaughter. Less than a year later, the parents asked the court to vacate that agreement. The grandparents then filed a suit for visitation with a second granddaughter, who had been born five months earlier. The court found in favor of the parents, citing the "coldness, stress, tension and battling hostility" that the first daughter had been exposed to during the family's attempts at visitation.
Not only was this type of visitation not in the child's best interest, the court stated, but it had likely been "very harmful" to the child.
E. S. v. P. D. (2007). In this case a grandmother moved into her daughter's house when the daughter was dying of cancer. She stayed on after her daughter's death, living with her son-in-law and grandson and taking care of her grandson. After she had lived in the household for over four years, the father asked her to leave and cut off all contact, accusing her of undermining his authority with his son. The court found for the grandmother. The death of her daughter had given her standing in the case, and her "extraordinarily close" relationship with her son, during which she served as a "surrogate, live-in mother," enabled her to "surmount" the "high hurdle" of the law.
To sum up, grandparents seeking visitation in New York State have a difficult task, although the courts will support them if their case is clear-cut.