Grandparent Visitation Rights

Domestic Relations Law §72 grants grandparents the right to petition for visitation with their grandchildren. This is different than granting grandparents the right for visitation. Simply put, grandparents, in certain circumstances, are allowed to request through the courts visitation with their grandchild. The first step in petitioning the Court for visitation as a grandparent is establishing that you are the grandparent of the child in question. Once this is established, the Court must determine whether one of two grounds has been satisfied. First, a grandparent can make an application for visitation where either or both of the parents of a minor child, residing within this state is or are deceased. If this is not the case, then the Court may allow you to petition for visitation where “circumstances show that conditions exist which equity would see fit to intervene.”

There lacks a specific test or set of criteria which would assist a Court, or grandparent, in determining what equities exist to grant visitation. As a starting point, the Courts have recognized a humanitarian concern that visitation with a grandparent is often an important part of a child’s experience, an experience that cannot be duplicated. Therefore, it is helpful if the grandparent(s) had a pre-existing relationship with the child in question. It is helpful but not necessarily essential. For instance, if the grandparent(s) are able to establish that they have attempted to have a relationship with the child however the parents have prohibited the relationship, a Court will take that into consideration when making its determination. This is an important fact. Even if both parents are in agreement that they do not want the grandparent(s) in question to see their child, a Court may allow visitation in the right circumstances.

Once the grandparent(s) are able to establish that they have the right circumstances in which equity would make sense for them to have visitation, a hearing is conducted. The hearing will determine whether the grandparent(s) may exercise visitation. The determination lies strictly in the Court’s discretion. In making its decision, the Court will rely on what it believes is in the best interest of the child.

LEARNING POINT: Grandparent visitation is a complicated matter with obstacles which have to be cleared. If you are seeking visitation as a grandparent contact us immediately to begin preparing the best possible case. The key will be showing that it is in the best interests of the child to allow such visitation.

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