Grandparents Rights to Visitation | Long Island Divorce Lawyer

If you are a grandparent, what rights do you have to visit your grandchildren?  Can you get a Court to grant you visitation with your grandchildren if the parents forbid it?  The Court of Appeals for New York addressed this issue in its decision of In the Matter of E.S. v. P.D., in 2007.

In that case, husband and wife were married and had one child. Unfortunately, the wife was diagnosed with cancer.  When the diagnosis was made, wife’s mother moved in to help her daughter with daily errands and other things like cooking, cleaning and caring for the couple’s son. The wife passed away and the decision was made that the grandmother would stay in the house to help raise the child while husband worked.  For the next five years, the grandmother helped raise the child.  At some point, arguments between the father and grandmother began regarding the best way to raise the child.  As a result, the father asked the grandmother to leave and severely curtailed the visitation between the child and his grandmother.  As visitation became less and less frequent, grandmother petitioned the Court for visitation.  The father’s position was that the grandmother was not raising his son the way he deemed fit and was usurping his role as the father.

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 supreme or family court, and the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given  in such manner as the Court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent in respect to that child.

When a Court is faced with a petition from a grandparent requesting visitation, it first must find that the grandparent has standing to come into court in the first place.  There is no automatic right for a grandparent to see their grandchild.  The Domestic Relations Law only provides a vehicle for a grandparent to seek visitation.  In order for a grandparent to have standing the Court must find one of two things exist.  First, if one of the two parents has passed away, then the grandparents have standing.  The other test is a more of a catch all which states that the grandparents have shown equitable circumstances which dictate that they should at least be heard as to why they should have access to their grandchild.

In this case, since a parent passed away, the grandmother had standing and was able to petition the Court for visitation.  Based on the facts in this case, specifically a five year relationship with the child where the grandmother was assisting in raising the child, the Court held that it was in the child’s best interests to continue this close relationship with the child.  Despite this ruling, the Court was mindful of the father’s wishes and right to raise his son in a manner which he deemed proper. However, in this case, the Court found that the fights and other allegations in which the father leveled against the grandmother were unsubstantiated.

In the circumstance where both parents are alive, the grandparents have a harder time establishing standing.  In order to have standing when both parents are alive, the grandparent would have to show that equity dictates that they be heard in Court.  What should a grandparent be able to show? Their best bet is to establish a long and close bond with the grandchild.  The fact that there is an acrimonious relationship between the parents and the grandparents are not enough to establish or deny visitation.  The key will be the relationship between the grandparent and the child before visitation is curtailed or denied.  Even if you are able to establish standing, grandparents normally have a high hurdle to overcome in forcing visitation.  The parental right to make decisions for their children and raise them in a manner they deem fit is paramount to raising children and will not be lightly disregarded.

Grandparent visitation is a complicated matter which should not be entered into lightly.  Your case will depend on the facts and circumstances of your particular case.  Assuming you have standing, preparing for the hearing is crucial.  If you cannot amicably settle this matter and must seek judicial intervention regarding grandparent visitation, seek our advice from one of our Divorce attorneys at the Long Island Divorce Law Firm of Divins & Divins, P.C., immediately so that we can begin preparing your case for the best possible outcome.

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Sale of the Marital Estate in New York

One of many issues which must be dealt with when getting divorced is what to do with the marital estate.  For purposes of this article, we are going to assume the martial estate was purchased during the marriage from marital funds.  Future posts will deal with a marital estate that was either originally separate property or separate property was used to purchase the estate.

The marital estate is marital property and must be disposed of in accordance with the Domestic Relations Law.  The first option is to simply sell the home. Once the sale is complete, any profits or losses are to be shared equally between the parties.  If you have been following these posts you know by now that nothing is that simple.  The other option is to have one party buy the other party’s interest.  You simple decide on a fair price and the party wishing to remain in the home must buy the other party’s interest in the home.  Yet another option is to trade your interest in exchange for other marital property or responsibilities.

For instance, we recently had a case where our client, wife, was to retain physical custody of the children.  The husband did not want to pay child support and we were heading straight to a trial.  We began discussing the marital estate.   There was significant equity in the house.  We agreed to have the husband waive his interest in the house in exchange for his child support obligation.  We simply calculated what his child support obligation would be and compared it to his equity in the house.  As both numbers were close, this was a creative way to have the wife keep the marital residence, the children stay in the home they were used to and dispose of the marital estate.

The most challenging aspect of the marital residence is when one party does not want to sell the asset yet wants to be divorced.  Fear not, the house will be sold however if you cannot get the parties to agree, then you must look to the Court for assistance.  In our example, the marital estate is own by the parties as tenants by the entirety.  Therefore, the Court will lack the authority, absent the consent of the parties, to order a sale of the marital estate while the parties are married.   If your spouse stands their ground, the Court can order a sale after you are divorced.  The Court can and will order how the net proceeds or liabilities are to be split.

Then there is the hybrid case, where both parties want to sell the house but there are young kids involved.  Another possibility that is often used is to allow the spouse who retains physical custody of the children to remain in the house.  That spouse will be responsible for all the bills related to the marital estate and will agree to indemnify the spouse who is moving out in the event any liabilities relating to the house arise.  Normally in the separation agreement, there is language which provides that the spouse who remains in the house shall pay all bills relating to the estate and that in the event the mortgage is not paid for a certain amount of months, the house will be automatically put up for sale.

Disposing of the marital estate can be complicated and is not as easy as simply selling off the estate.  If you are contemplating divorce and you believe the marital estate may be an issue, contact us immediately to begin preparing your matter.