Grandparent Visitation Rights in New York

Grandparents have no automatic right to see their grandchildren in New York. But they are not without recourse either. The law gives grandparents a specific path to court, and Suffolk County judges grant grandparent visitation regularly when the facts support it. Here is how the law works and what it takes to win.

Standing: when a grandparent can file

Domestic Relations Law section 72 gives grandparents the right to petition for visitation in two situations. The first is when one or both of the child's parents has died. The second is broader: when circumstances show that conditions exist in which equity would see fit to intervene. That phrase has been interpreted to require a real, existing relationship between the grandparent and the child, or a sustained effort by the grandparent to build one that the parents have frustrated. A grandparent who has been cut off after years of regular involvement generally has standing. A grandparent who has never met the child and never tried will have a harder time, though a genuine, documented effort to establish contact can be enough.

Parents, not grandparents, are the first level of decision making, so the law does not let grandparents simply second guess a parent's choice. Standing is the gate that keeps those cases out.

The two step test

Grandparent visitation cases are decided in two steps. First, the court decides whether the grandparent has standing under the rules above. If not, the petition is dismissed without reaching the merits. Second, if standing exists, the court decides whether visitation is in the child's best interests. Both steps are decided on evidence, usually after a hearing, and both are necessary.

Best interests when a fit parent objects

A fit parent's decision about who their child spends time with is entitled to significant weight. That does not end the case, but it means the grandparent needs more than a desire to visit. The court looks at:

• The nature and quality of the relationship between the grandparent and the child before the dispute
• How long the grandparent has been involved and whether they have been a caregiver
• The reasons the parent is objecting, and whether they are reasonable
• The level of conflict between the grandparent and the parent, and whether visitation would expose the child to it
• The child's own wishes, depending on age
• Whether the grandparent respects the parent's authority or undermines it

Courts frequently appoint an Attorney for the Child in these cases. Beau Taylor serves in that role in Suffolk County and has seen these cases from the child's side.

Common situations

• A parent has died and the surviving parent has cut off the deceased parent's family. Standing is automatic; the case turns on best interests, and the court tends to value preserving the child's connection to the deceased parent's side.
• The parents have divorced and the custodial parent has ended contact with the other parent's family. Often the simpler route is for the noncustodial parent to share their own parenting time with the grandparents, which requires no petition at all.
• The grandparent raised the child for a period and the parent has now resumed care and ended contact. These are the strongest visitation cases and sometimes become custody cases.
• An estrangement between the grandparent and an intact family. These are the hardest cases, because two fit parents who agree have the strongest claim to deference.

Grandparent custody: extraordinary circumstances

Visitation is one thing; custody is another. A grandparent, or any nonparent, can be awarded custody over a parent's objection only after proving extraordinary circumstances, such as abandonment, persistent neglect, unfitness, or a prolonged separation of the child from the parent during which the grandparent raised the child. If extraordinary circumstances are shown, the court then decides custody on the child's best interests. Section 72 specifically recognizes that a grandparent who has had the child for an extended period, generally 24 months or more, may have a basis to seek custody. These cases are serious litigation and almost always require a hearing.

Where and how to file

A grandparent visitation petition is filed in Family Court, in Central Islip or Riverhead for Suffolk County, or in Supreme Court if a divorce involving the parents is pending. The petition identifies the child, the parents, the relationship, and the basis for standing, and asks for a specific schedule. The parents are served and appear. The court may refer the matter to mediation, appoint an Attorney for the Child, and set the case for a hearing. A realistic request, such as one weekend day a month and some holiday time, is more likely to be granted than a demand that mirrors a parent's schedule.

Practical advice for grandparents

• Document your relationship with the child: photographs, cards, school events, the periods you provided care.
• Keep trying, in writing and politely. A record of reasonable requests that were refused supports standing.
• Do not criticize the parents to the child, show up uninvited, or involve the other grandparents in a campaign. The court will see it as the reason the parent cut you off.
• Consider whether the other parent, if the parents are apart, would share their time with you.
• Talk to a lawyer before filing. A petition without standing is dismissed, and a dismissal makes the next attempt harder.

Siblings and other relatives

New York also allows siblings, including half siblings, to petition for visitation with each other under a parallel provision. Other relatives, such as aunts, uncles, and stepparents, have no statutory visitation right, though they may seek custody on extraordinary circumstances in the same way a grandparent can. For how custody cases are decided generally, see the firm's child custody page.