By now many are aware that New York State allows grandparents to petition for the right to have visitation with their grandchildren (Domestic Relations Law Section 72). And to do so, grandparents must establish certain threshold elements for a Court to intervene and allow visits—something called “standing.”
Primarily, they must establish that either one parent is deceased, allowing a grandparent to seek their own direct visits with the child or that other “equitable circumstances” exists which would allow visits. Once such standing is established, the Court must then find that such visits are in the best interest of the child(ren). But what about the parents that wish to oppose such an order of visitation? Where do they stand?
Case law recognizes the rights of, what they refer to as an “intact family unit,” to object to such visitation. That is to say that if the parents of the child are united in their objection to grandparent visitation, the Court could decline to issue an order. This requires the Court to consider the nature of the parents’ objections. The objections must be weighed in light of the grandparent’s historical relationship and contact with the grandchild and their efforts, if any, to forge that relationship, even over the parents’ objection.
That is to say, that if the grandparents have made no effort to have a relationship with the child; have sent no cards or gifts; attempted to visit; or addressed the parents’ objections, then a Court could decline to issue a visitation order. What qualifies as sufficient efforts, is case sensitive and varies with each family and set of facts.
However, while the parents may be united in their desire to oppose a visitation order, of equal consideration by the Court, is the basis for those objections. Mere disagreements between parent and grandparent is not enough. But where the parent/grandparent relationship is hostile, threatening, or has led to an order of protection such factors will be weighed by the Court, particularly where allegations of a grandparent’s criminal conduct or substance abuse have been established.
Family Court, while not usually the first choice of venues to air such intricate family issues, is a Court mandated to weigh and cautiously determine these familial rights and try to reach a determination suited to the best interest of the children. But if parents find themselves faced with such petitions and they believe an order of grandparent/grandchild access to be contrary to their parenting priorities, they do have the right to object and should seek informed and experienced legal advice.
Barbara J. King is the chair of Tully Rinckey PLLC’s Family and Matrimonial Practice Group. A partner-level attorney, Barbara represents clients in divorce, separation, equitable distribution, annulment, child support, child custody, spousal maintenance and adoption proceedings.
