Grandparents Rights in New York, NY

Grandparents rights’ in New York are more limited in other states and are granted visitation and custody rights only in certain cases.

Visitation Rights of Grandparents in New York

For grandparents in New York to be given visitation rights, any of the following must occur under Domestic Relations Law (DRL) § 72:

• One or both of the parents of the minor child has died; or
• If parents are alive, circumstances show that conditions exist which equity would see fit to intervene.

The second condition, equitable circumstances, is broad enough to encompass a lot of situations. New York courts have interpreted this to include the following situations:

• The child’s parents are divorced or separated;
• The child’s parents are unmarried, and the father has not legitimized the child.

In determining whether equitable circumstances exist, the court considers the following factors:

• The relationship between the parents and the grandparent;
• The relationship between the grandparents and the child;
• The reasons the parents have denied the grandparents access to the child in the past;
• The child’s wishes;
• The child’s best interests;
• The child’s age;
• The distance between the child’s house and the location of the proposed visits of the grandparents;
• The good faith of the grandparent in filing the petition;
• The parties’ mental and physical health;
• The timesharing arrangement between the parents and the child, if applicable.

Custody of Grandparents in New York

Grandparents in New York may also have custody rights under DRL § 72 in cases of extraordinary circumstances. New York courts have considered the following situations as extraordinary circumstances that would grant custody rights to grandparents:

• Extended disruption of custody, which includes a prolonged separation of the parent and child for at least 24 continuous months during which the parent voluntarily relinquished care and control of the child to the grandparents;
• Abandonment of child;
• Gross neglect of child;
• Mental or physical unfitness of the parent to raise the child; or
• Other extreme circumstances.

In determining whether custody should be granted to the grandparent, the court will primarily consider the child’s best interests. To determine best interests, the following factors are considered, to name a few:

• The grandparent’s ability to provide a safe and stable home for the child;
• The child’s relationship with the parents;
• The child’s relationship with the grandparents;
• The child’s current living situation; and
• The child’s emotional and physical well-being;

Despite all of this, the parent still also enjoys a first preference and priority of child custody over the grandparent.

The Procedure for Grandparents’ Visitation and Custody Rights

To be granted visitation and custody rights in New York under DRL § 72, the grandparents must initiate a petition to the family court, requesting such rights through a special proceeding or for a writ of habeas corpus to bring the child before the court, with due notice to the parent or any other person with care, custody, and control of the child. A family law attorney can assist you in this petition,

Standing: the threshold grandparents must clear first

Before a New York court will even consider whether visitation or custody is in the child's best interests, a grandparent has to clear a separate, two-step threshold. The first step is statutory standing under DRL §72: either the death of a parent, or "equitable circumstances" that justify the court's involvement. The second step, established by the New York Court of Appeals, asks whether a sufficient existing relationship between the grandparent and grandchild exists - or, if one does not, whether the grandparent made sincere efforts to establish one that were frustrated by the parent. Without standing, the petition will be dismissed without ever reaching best interests.

This is one of the most misunderstood parts of grandparent litigation in New York. A grandparent who has had only sporadic contact with the child, and who has not made consistent, documented attempts to be involved, will often lose at the standing stage. By contrast, a grandparent who has babysat regularly, attended birthdays and school events, sent letters and gifts that were returned or ignored, and tried unsuccessfully to arrange visits will usually clear the threshold.

Two-tier analysis: standing first, then best interests

New York courts deliberately separate the standing inquiry from the best-interests inquiry, and the two should not be confused. Standing is a gateway question - it asks whether a grandparent is even allowed to ask the court for relief. Best interests is the substantive question - whether, assuming the gate is open, granting visitation or custody is actually good for the child. A grandparent can clear standing and still lose on best interests, and the court is required to address standing first.

How grandparent custody differs from visitation

Visitation petitions are far more common than custody petitions, and the legal standards are different. For visitation, the grandparent does not have to show that the parents are unfit; the court only weighs whether visitation serves the child's best interests, against the backdrop of the parents' constitutional right to control their child's upbringing. For custody, the bar is much higher. The grandparent must prove extraordinary circumstances first - things like extended disruption of custody, persistent neglect, abandonment, surrender, or parental unfitness. Only after extraordinary circumstances are established does the court move to best interests.

Extended disruption of custody

One of the most-used pathways to custody under DRL §72 is the "extended disruption of custody" category. This applies when a child has lived with a grandparent for 24 continuous months or more, with the parent's voluntary relinquishment of care and control. Grandparents who have been raising a grandchild informally - because a parent was incarcerated, in treatment, in active addiction, or simply absent - should be aware that this two-year clock can ripen into a legal basis for custody.

What the parent's objection means legally

The United States Supreme Court has held that fit parents have a constitutional right to make decisions about their children's care, including who their children spend time with. New York courts take this seriously. A fit parent's decision to refuse grandparent contact is given significant weight, and the grandparent must overcome that presumption with specific evidence. This is why courts examine the reason the parent is denying access. A parent who is denying contact because of legitimate concerns - the grandparent undermined the parent, exposed the child to harmful behavior, or has untreated substance abuse issues - will usually be sustained. A parent who is denying contact out of personal animosity unrelated to the child often will not.

Common situations that bring grandparents to court

• A parent has died, and the surviving parent (or the deceased parent's new partner) cuts off contact with the deceased parent's side of the family.
• The parents divorce, and the parent with primary custody refuses to allow contact with the other parent's parents.
• One parent is incarcerated or struggling with addiction, and the other parent restricts contact with that side of the family.
• A grandparent has been raising the grandchild and the parent suddenly tries to reclaim the child.
• A child is in foster care, and the grandparent wants to be considered as a kinship placement.
• Family conflict - a falling-out between adult children and their parents - leads to a complete cutoff.

Evidence that helps a grandparent's case

Grandparent cases are won and lost on evidence of relationship. Useful proof typically includes:

• Photographs of the grandparent with the child over a span of years.
• Text messages, emails, and cards showing ongoing communication.
• Records of childcare provided - days the grandparent picked up from school, watched the child while the parents worked, or had the child for overnights.
• Witnesses (neighbors, teachers, family friends) who can describe the relationship.
• Documentation of attempts to maintain contact after the cutoff - unanswered calls, returned gifts, blocked phone numbers.
• Financial contributions - paying for camp, school supplies, medical needs, extracurriculars.

Procedure in Family Court

A grandparent visitation or custody petition is filed in Family Court in the county where the child resides. Once the petition is filed, the court issues a summons, and the parents (and anyone else with care and custody of the child) are served. The case proceeds through initial appearances, discovery if needed, a forensic evaluation in custody matters (and sometimes in heavily contested visitation matters), the appointment of an attorney for the child, and ultimately a hearing. Many cases settle - the parties agree to a structured visitation schedule that everyone can live with - and the agreement is then "so ordered" by the court.

Attorney for the child

The court will frequently appoint an attorney for the child, particularly if the child is old enough to express a preference. The attorney for the child is a real lawyer for the child - not a guardian ad litem - and that lawyer's position can substantially influence the outcome. Grandparents should be respectful and candid with the attorney for the child and avoid asking the child to take sides.

Common mistakes that hurt grandparent cases

• Speaking negatively about the parents in front of the child, or coaching the child to repeat allegations.
• Filing without first attempting reasonable, documented outreach to the parents.
• Showing up to the child's school, sports practice, or home uninvited after being told to stop.
• Posting about the case on social media.
• Treating the petition as a vehicle to relitigate a family grievance rather than to maintain a relationship with the child.
• Ignoring temporary orders issued during the case.

Frequently asked questions

Do New York grandparents have an automatic right to see their grandchildren?

No. New York does not recognize an automatic right of grandparent visitation. The grandparent must petition the court and prove both standing and best interests.

Can great-grandparents petition?

DRL §72 by its terms refers to grandparents. Great-grandparents and other relatives may have other procedural routes (Family Court Act Article 6 custody petitions, for example), but standing is more limited and very fact-specific.

Does adoption end grandparent rights?

Adoption generally terminates the legal rights of biological relatives, including grandparents. There are narrow exceptions, particularly in step-parent adoption situations, and an attorney should review the specific circumstances.

How long does a grandparent petition take?

Contested grandparent petitions often take six months to over a year from filing to resolution, longer if a forensic evaluation is ordered. Uncontested or settled matters can resolve much faster.

Grandparents’ rights in New York can be a complex matter. Grandparents attempting to obtain visitation or custody rights over their grandchildren may receive resistance from the parents or persons who have custody over the child. For this reason, having an experienced family law attorney beside you to represent your interests is vital to the success of your petition. Should you need assistance, we, at the Law Offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].