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Is Grandparent Visitation Unconstitutional?


This is an appeal brought before the Supreme Court on the issue of whether Domestic Relations Law § 72, New York’s grandparental visitation statute, is unconstitutional on its face in light of the decision of the United States Supreme Court in Troxel v Granville (530 US 57). The court granted the motion and “deemed” the statute to be unconstitutional. The court ruled that the statute is not facially invalid.

The petitioner, a grandparent, commenced this proceeding pursuant to Domestic Relations Law § 72 to obtain visitation with his 15 minor grandchildren.

The respondents are the grandchildren’s parents (the parents).

The petitioner and his wife separated following marital difficulties. Since the separation, the parents have refused to permit the petitioner to visit or have a relationship with his grandchildren.

The parents made a preanswer motion to dismiss the petition on the ground that Domestic Relations Law § 72 violates the Fourteenth Amendment of the United States Constitution based on the recent decision of the Supreme Court of the United States in Troxel v Granville.

Under the Domestic Relations Law § 72, “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 or the grandparents of such child may apply to the supreme court by commencing a special proceeding or for a writ of habeas corpus to have such child brought before such court, or may apply to the family court pursuant to subdivision (b) of section six hundred fifty-one of the family court act; and on the return thereof, 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 or grandparents in respect to such child.”

The Washington State under Wash Rev Code § 26.10.160 [3]), the nonparental visitation statute at issue and as discussed in the Troxel case, permits “any person” to petition for visitation rights “at any time” and authorizes a court to grant visitation whenever it “may serve the best interest of the child.”

In the case of Troxel, the paternal grandparents commenced a proceeding to obtain additional visitation with their two grandchildren. While the mother did not refuse all visitation, she sought to limit it. The court, after trial, granted the grandparents increased visitation. When the case finally reached the Washington Supreme Court, that court found the statute to be facially invalid under the Federal Constitution because it unconstitutionally infringed on the fundamental right of a parent to rear his or her children. The United States Supreme Court affirmed the dismissal of the grandparents’ petition, but declined to hold the Washington statute unconstitutional on its face. The court held in a plurality of opinion that the statute was unconstitutional only as applied to the facts of the case. According to the Justice of the Court who authored the plurality opinion, the Washington statute was “breathtakingly broad” in that it permitted any third party seeking visitation to subject a parent’s decision regarding visitation to court review, according no deference to the parent’s decision. The statute did not even require a court to afford a parent’s decision any presumption of validity or to give the parent’s decision any weight whatsoever. When the Justice reviewed the trial court’s decision, he found that the court’s order was based on a “mere disagreement” with the mother’s decision and not on any special factors that might justify the state’s interference with the mother’s rights. The problem, as articulated by the Justice, was not that the trial court intervened, but that when it did so, it gave no special weight at all to the mother’s determination of her children’s best interests. As a matter of fact, the trial court applied the opposite presumption, presuming that grandparental visitation would be in the children’s best interests unless it was shown that the children would be adversely impacted. The Justice gave emphasis to the fact that a decision regarding visitation is for the parent in the first instance and, if a fit parent’s decision becomes subject to judicial review, the court must afford at least some special weight to the parent’s decision. The plurality did not define the precise scope of the parental due process right in the visitation context and stated that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied. While the Washington Supreme Court had the opportunity to give the statute a narrower reading, it declined to do so.

Here, contrary to the parents’ contention, the Troxel case does not mandate a finding that Domestic Relations Law § 72 is unconstitutional per se. As held in the case of United States v Salerno, 481 US 739, 745, a facial challenge to a legislative Act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. While a statute might operate unconstitutionally under some circumstances, it is insufficient to render it entirely invalid. As held in a plethora of cases, legislative enactments are presumptively valid and a party challenging a statute must demonstrate its invalidity beyond a reasonable doubt. That burden was not met in the instant case.

Domestic Relations Law § 72 can be, and has been, interpreted to accord deference to a parent’s decision, although the statute itself does not specifically require such. It was drafted much more narrowly than the Washington statute. If the United States Supreme Court did not declare the “breathtakingly broad” Washington statute to be facially invalid in the Troxel case, then, of course, the more narrowly drafted New York statute is also not unconstitutional on its face. The Court even stated that it was hesitant to hold specific nonparental visitation statutes unconstitutional per se because much state-court adjudication in this context occurs on a case-by-case basis. The Troxel case does not prohibit judicial intervention when a fit parent refuses visitation, but only requires that a court accord “some special weight to the parent’s own determination” when applying a nonparental visitation statute.

Applying the foregoing, the Supreme Court erred in concluding that Domestic Relations Law § 72 is unconstitutional per se and in dismissing the petition on that ground. It must be noted that the parents’ motion raised only the issue of whether Domestic Relations Law § 72 is facially invalid under Troxel. In determining that it is not, the court cannot express any opinion with respect to the application of the statute to the facts of the case.

Thus, the order was reversed, on the law, with costs, the motion was denied, the petition was reinstated, and the matter was remitted to the Supreme Court, Kings County, for further proceedings.

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