Grandparents Rights © 2002
Jay J. Sangerman, PLLC
www.sangerman.com
It is not unusual for grandparents to be closer with their grandchildren than they ever were with their children. Later in life, especially after retirement, there is often more opportunity for family closeness than there was during the earlier years when it was necessary to earn income to provide for a growing family. Further, due to the increase in the number of single parent households and two career households, more grandparents are playing a role (which is perhaps primary) in the upbringing of their grandchildren. So, what happens, and what can you do, when you, the grandparent, had a great relationship with your child and grandchildren and then something happens which may interfere with that relationship? Will the relationship with the grandchildren be able to continue? Will the law permit, or assist, in the maintenance of the precious relationship between grandparent and grandchildren? What happens should the grandparent and the parent have a falling out and the parent prevents the grandparent from visiting the grandchild? What happens in the event of the death of the parent and the surviving parent seeks to disrupt the relationship between the grandchildren and the in_laws? What rights do grandparents have when the child becomes divorced and the child is not the custodial parent? This article, which is not intended for purposes of legal advice, briefly sets forth some of the issues for grandparents and parents to consider pertaining to grandparents’ legal rights.
The legal controversy pertaining to grandparents' rights is relatively new. Unfortunately for grandparents, the law is not on their side and grandparents may have little opportunity to protest. Grandparents, pursuant to Section 72 of the New York State Domestic Relations Law, can institute a court proceeding to seek to obtain visitation with their minor grandchildren. But grandparents need to overcome the strong public policy of allowing parents to raise their children as the parent or parents deem appropriate. The grandparent will need to demonstrate to the judge that the continuation of the grandparent/grandchild relationship is in the best interests of the grandchild, and, maybe, will also need to show that the grandchild will be harmed by the lack of contact with the grandparents – that is, it is not the interests of the grandparent that counts!
Because there is a presumption that a fit parent will act in the best interests of his/her child, in order for a grandparent, or any other party, to have the opportunity to avoid dismissal of an application to a court for visitation, there must be extraordinary circumstances where equity would require such relief. New York courts consider, among other things, whether the grandparents have an established relationship with their grandchildren that would justify court intervention. The judge may consider if the custodial parent has inappropriately tried to obstruct the relationship and may take that into account when determining what is in the grandchild’s best interests.
If there is an established relationship between grandparent and grandchild, then the court may examine the basis for the parent’s or parents’ decision to forbid or terminate contact between grandparents and grandchildren. If the court determines that it is in the best interests of the grandchild to grant visitation to the grandparents, the court may grant visitation. In order to establish to a court that grandparents’ visiting with grandchildren is in the grandchildren’s best interest, it is important that the grandparents attempt to build meaningful relationships with their grandchildren as soon as possible. If grandparents’ efforts to visit with grandchildren are refused by the child's parent or parents, then the grandparents should document their attempts to contact the grandchild and continue to send birthday and holiday cards and appropriate gifts.
All of these facts would help a court determine that the grandchild’s best interest will be fostered by the continuation of the relationship. It is important to note that grandparents have the burden to prove that visitation is in the best interests of the grandchild. The grandparent needs to rebut the presumption that parents’ decision to prevent grandparent/grandchild visitation is appropriate.
Some judges in New York State (citing a recent United States Supreme Court case pertaining to Washington State law) have even held that Section 72 of the New York State Domestic Relations Law, which gives grandparents the opportunity to petition a court, is unconstitutional. These judges state that Section 72 violates the parents’ fundamental rights to decide on the care, custody and control of their child. The United States Supreme Court held that the similar Washington State law was unconstitutional because, among other reasons, it contained no requirement that the court presume the parents’ decision was valid before granting visitation and, therefore, violates the Fourteenth Amendment which guarantees "due process" under the law.
Generally, grandparents in New York State seem to have a chance at achieving Court_ordered visitation with their grandchildren only if one of the parents is deceased. Other than that unfortunate scenario, it is a huge uphill battle for the grandparents. In essence, grandparents must prove that the parent or parents are unfit before a court will agree to listen to the case. Only after extraordinary circumstances are shown will parents’ preferences be disregarded. The New York Court of Appeals has yet to address the issue of whether Section 72 contravenes parents’ fundamental right when it is applied over the objections of a fit parent.
In spite of the above description, do not feel frustrated that there is nothing grandparents can do to preserve their relationships with grandchildren. Aside from sending cards and appropriate gifts to grandchildren, grandparents can suggest to their adult children to document in their last will and testament, or some other appropriate document, what they want to happen to their children if anything should happen to the parent. In that respect, if one’s child dies, his/her spouse would know what the deceased spouse would have wanted and hopefully would respect that decision. Similarly, grandparents, who have a concern that their relationship with the grandchildren may be interfered with, may themselves document the facts of their relationship, the times that are spent with the grandchildren, the experiences they share, and the value of this relationship to the grandchildren. Therefore, if grandparents are ever “put to the test,” the grandparents will have evidence to show why the relationship is “in the best interests” of the grandchildren. Most important, value those relationships with children and grandchildren and enjoy those precious moments. As I was recently told by the child of a resident of the Hebrew Home for the Aged at Riverdale, the grandchildren have “fun” visiting grandfather! The trains, the exhibits, the great lawn make it an incredible environment for grandparents and grandchildren to meet and be together. Therefore, enjoy those precious moments!
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For a chart comparing the laws in all fifty states, please click here.
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Jay J. Sangerman, PLLC
by:
Jay J. Sangerman, Esq. and Julie Dopkin, Esq.
Published in the Hebrew Home for the Aged in Riverdale Publication
JAY J. SANGERMAN, ESQ.
Jay J. Sangerman, PLLC
60 East 42nd Street - Suite 650
New York, New York 10165
Telephone (212) 922-0711
Facsimile (212) 922-0709
jsangerman@sangerman.com
4115 NW 60th Circle
Boca Raton, Florida 33496
561-989-9095
Jay J. Sangerman & Associates
Lanidex Executive Center
100 Misty Lane
Parsippany, New Jersey 07054
(973) 739-9055