DO GRANDPARENTS HAVE A RIGHT TO VISIT THEIR GRANDCHILD(REN)?

You are a grandparent and love and enjoy your grandchild(ren), but unfortunately, you are now prevented from visiting them or having any contact with them. You miss them and want to know if you have a legal right to see them.

Domestic Relations Law §72(1) states that where either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to the Court for an order after due notice to the parent or any other person or party having the care, custody, and control of such child(ren), is provided in a manner as ordered by the Court. The Court may permit visitation rights for the grandparent(s) if the best interest of the child(ren) dictate.

In other words, when a Court is faced with a request from a grandparent requesting visitation, the first question is if that grandparent has “standing.” This is the first hurdle to overcome because there is no automatic right for a grandparent to see their grandchild.  For a grandparent to have standing the Court must find that one of two things exist.  The first is if one of the two parents passed away. If the answer is yes, then the grandparents will have standing.  The other is a more of a “catch all” which states that equity would dictate that the grandparent should at least be heard by the Court as to why they are entitled to have access to their grandchild. 

In the circumstance where both parents are alive, the grandparent(s) will have a harder time to establish standing.  To have standing when both parents are alive, the grandparent would have to show that equity or fairness dictate that they be heard in Court.  The concern is not what is “fair” or “equitable” to the grandparent, but that to continue visitation  would be in the best interest of the grandchild.

What does a grandparent need to show? Their best reason to continue visitation is to inform the Court that they have established a long and close bond with the grandchild.  The fact that there is an acrimonious relationship between the parents and the grandparent(s) is not enough to deny visitation with their grandchild.  The key component is if a loving close relationship existed between the grandparent and the grandchild before the visitation was denied. If so then, it would be in the best interest of the child to maintain the relationship with the grandparent(s). Even if you are able to establish standing, a grandparent will still have a high hurdle to overcome in forcing visitation.  The parental right to make decisions for their children and for a parent to raise them in a manner they deem fit is paramount to raising children and the Court will not lightly disregard this principle. However, the forefront of the Court is the best interest of the child as children cannot protect themselves. Therefore, if you can establish that it is in your grandchild’s best interest to maintain the relationship the Court will most likely grant your request if the facts and circumstances of your particular case determine such a decision.