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Grandmother Who Established Loving Relationship with Grandchild Has Standing to Bring Petition for Visitation- Of v. S.F., 61 Misc.3d 959 (N.Y. Cty. Ct. 2018)


In a case that pits a grandparent against parents, the Kings County Family Court considered whether the grandmother had standing to request visitation with her grandchild.  Contrary to what many believe, under New York law, grandparents do not automatically have the right to have access to their grandchildren.  In fact, there are rules related to when grandparents even have the legal right to petition the court to request visitation.

Grandparents who seek to request visitation must have standing.  Legal standing means that a person seeking redress in court has sufficient connection to and harm from the action challenged. Grandparents do not automatically have standing the way parents do.  Under New York law grandparents have standing to seek visitation only under two conditions.  The first condition is that either or both of the child’s parents must be deceased.  The second condition is that circumstances must warrant equitable intervention of the court.  If standing is established the court must then determine if allowing visitation is in the best interests of the child.  This case only addresses the issue of standing.

In Of v. S.F. both parents of the child are alive and the child resides with them.  If the grandmother has standing, it must be based on equitable circumstances.  The grandmother had a close relationship with the child for several years and was involved in rearing him.  She babysat the child, visited him, played with him, and attended school events for grandparents. However, the parents took issue with how the grandmother treated them in front of the child.  They described her as rude, angry, abusive, and confrontational.  The parents took steps to encourage the grandmother to change her behavior by talking to her, sending her emails, creating rules, and going to therapy.  However, when the grandmother’s behavior did not significantly change, in December 2015 the parents barred the grandmother from further contact with the child unless she complied with their conditions, including participating in therapy. The grandmother did not comply.

In response, the grandmother made continued attempts to see the child by calling, texting, and emailing the parents, asking other family members to intervene on her behalf, sending the child cards, seeking the intervention of a rabbi, and showing up at activities without being invited.  Finally, the grandmother sought the intervention of Family Court to gain access to her grandchild.

The court found that based on equitable circumstances, the grandmother does have standing to petition the court for visitation.  The issue for the court to decide next is whether visitation with the grandmother is in the best interests of the child.

Clearly there is a great deal of acrimony between the parents and the grandmother.  Generally, the court has found that acrimony between the parents and grandparents is not enough to deny visitation.  In a recent case the court terminated grandparent visitation when the hostility between the parents and grandparents caused the visitation to become detrimental to the child.  The court found that the visits were no longer beneficial to the child and, therefore, not in the best interests of the child.

Family relationships can be complicated.  While ideally grandparents and other extended family members would get along and children will grow up with close relationships with them, realistically that does not always happen.  Parents are the only ones who have a legal right to have access to their children.  Even then, the court will curtail that access if it is in the best interests of the child to do so.

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