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Grandmother Requests Visitation Rights – E.S. v. P.D., 863 N.E.2d 100 (N.Y. 2007)


In this appeals court case, the court considered whether the Supreme Court properly awarded a grandmother visitation rights with her grandson pursuant to New York Domestic Relations Law § 72(1).

Under New York’s Domestic Relations Law, when a grandparent seeks visitation, the court must first determine whether the grandparent has standing to seek visitation.  In order for the grandparent to have standing, either or both of the child’s parents must be deceased, or the circumstances must warrant equitable intervention of the court.  If standing is established, then it is up to the grandparent to establish why visitation is in the best interests of the child.

The court will look at a number of factors in determining whether grandparent visitation is appropriate.  For example, the court will consider the relationship between the grandparent and the child and will weigh heavily a close relationship.

In addition, the court will also consider the degree of acrimony between the parent and the grandparent.  Acknowledging that there is always some acrimony, otherwise the grandparent would not have to sue for visitation, acrimony alone will not be sufficient to deny visitation.  However, it is a factor that the court will not completely ignore.

In E.S. v. P.D., the grandparent’s involvement in the life of her grandchild increased substantially when her daughter, the mother of the child, became seriously ill and eventually passed away. Both the child’s mother and father had asked the grandmother to come live with them to help take care of the child as the mother’s illness progressed. After the mother passed away, the father asked the grandmother to continue to live with him and the child to help care for the child.  The arrangement worked out well for about 3 years. The grandparent was very much involved with the care of the child.  She took him to school, helped with homework, drove him to after school activities, and prepared meals for him.

Eventually the relationship between the father and the grandmother declined.  The father felt that the grandmother undermined his authority with the child and questioned her caregiving skills.  The father ended up kicking the grandmother out of the house and severely limited her access to the child.  In fact, he only permitted infrequent closely supervised visits.  The grandmother found the turn of events to be intolerable and with great reluctance petitioned the court for visitation.

The father opposed the petition.  He essentially argued that § 72 of the New York Domestic Relations Law was not constitutional and that the rights of parents are supreme.  The court pointed out that § 72 is not unconstitutional as it does not give grandparents absolute rights.  It gives grandparents standing under certain conditions to sue for visitation.  Whether grandparents are awarded visitation is dependent on several factors, including the decision of the parent.

In E.S. v. P.D. the court found that the grandparent had developed a close, loving relationship with the child.  Further, the court did not find evidence that the grandmother undermined the father-son relationship. On the contrary, the court found compelling evidence that the grandmother understood her role in the child’s life as being distinct from the father’s role.  They also found that she was interested in improving her relationship with the father for the sake of the child.  In addition, the court was not persuaded by the father’s questioning of the grandmother’s caregiving ability. Ultimately, the court found that the grandmother’s role in the child’s life was essential to his well-being.

Just like when court makes custody decisions with respect to parents, when making a grandparent visitation determination, the court looks at what is in the best interests of the child.  The court will not want to disrupt an established loving grandparent-grandchild relationship.  If the child is old enough, it will take into consideration what the child wants.  In this case, the child expressed a deep love for and attachment to his grandmother.  If the grandmother had petitioned the court  for visitation immediately after the death of the child’s mother without having established a relationship with the child, the court’s decision might be very different.

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