You are a grandparent, very concerned about the well-being of your grandchild(ren). Perhaps you haven’t been allowed to see them, or maybe you believe that they would be better off in your care. Either way, the path to grandparents’ rights is not simple or clear-cut. And to make matters worse, the New York State Legislature and the courts have gone back and forth on what rights if any a grandparent should or does have. At one point, believe it or not, it was determined that grandparents have no rights except those granted to them by the parents. Fortunately, that is no longer the case. I hope in this blog to clarify these issues for you, addressing the visitation issue first and custody second.
Fortunately, in most cases, parents understand the value of a relationship between their parents and their kids. Even though they may differ on how to raise the children, they encourage a relationship. In some cases, however, the parents are so angry about grandparental interference, or suffer so much from their own issues, that there is little or no relationship between the kids and their extended family.
So what are your rights in those circumstances? As the law now stands in New York, you may petition the Family Court for visitation with your grandchildren IF the parent(s) are denying you or unfairly minimizing your contact. In order to prevail on your petition, there are two levels of proof you must present at trial. First, you must show that you have either played a regular role in the child’s life OR that you tried to play such a role, but were prevented by the parent(s) from doing so. Once you have demonstrated this, the question becomes what is in the best interest of the child(ren). As long as the role you have historically played was a positive one, the court will usually award visitation. The court will want to see, for example, that you have regularly sent (or tried to send) birthday and holiday cards and/or gifts.
However, in cases where the parents can show that the grandparent uses drugs, abuses alcohol or has engaged in abuse or neglect, the court will often deny visitation. Other questions of grandparental “misconduct” create a gray area and courts differ about what they will do in those circumstances. One common example is where the grandparent(s) are badmouthing or countermanding the parent. In such cases, the court will sometimes grant visitation, but with the caveat that such behavior will not be tolerated and will result in termination of the visitation rights.
Courts usually grant one or two days of visitation per month to prevailing grandparents. The Judge may also decide that the children may have periodic phone conversations with the kids. In at least one case, I was able to convince the Judge to award my client (a grandmother) one week of visitation each Summer, so she could take the children home to North Carolina to visit her son’s extended family. Her son had passed away, leaving her estranged daughter-in-law as the sole custodian of the children. Without this order, the mother had no intention of ever allowing the children to spend time with, or get to know, their father’s side of the family.
Seeking custody of your grandchildren is another matter entirely. The courts have recognized that the Constitution gives parents a fundamental right to raise their children as they see fit. Anyone attempting to take this right away from the parents has a tremendous burden. To that end, the courts have consistently held that in a custody battle against a parent, a grandparent might as well be a “stranger.”
As with visitation, grandparental custody proceedings have two stages. The first stage requires the grandparent to prove that the child’s parents are “unfit.” No easy task, unless the parent is in prison, has been confined to a mental institution, or has been found by the court to have committed serious abuse or neglect. Other issues create, once again, a gray area. The parent may be using drugs or abusing alcohol, for example. But proving this to the court, and demonstrating that such use or abuse has rendered them unfit is not as simple as it sounds. Another gray area involves alleged abuse or neglect which has not been charged by CPS or found by a court. Quite often, I am consulted by grandparents claiming that a parent is unfit because they use corporal punishment. I have to remind my client that corporal punishment is legal in New York and is only considered abuse if it is deemed by the court to be “excessive.”
Once a grandparent has proven that the parent is unfit, the court will move to the second stage- a determination of what is in the child’s best interest. Even if the parent is unfit, the court may not believe custody with grandma or grandpa is best for the child. This is especially so if the grandparent is ill, disabled, unable to drive, or lacking the strength to care for the child. In such cases, the court will have to entertain petitions from others or consider foster placement.
With all these gray areas to consider, and given the difficulty of proving a case, it is important for you to seek counsel experienced in handling grandparental proceedings. At Steven H. Klein & Associates, we have collectively handled over a hundred such petitions, and can help guide you through the murky waters to accomplish your goals. Call now for your free consultation.