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Grandparents petitioned the court for sole custody and the cessation of the child’s visits with the father. Matter of Brady S v Darla B 2020 NY Slip Op 51619(U)


Under some circumstances, grandparents are awarded custody.  The court will award grandparents custody if it is in the best interests of the child.  However, it has been well-established that having a relationship with the parents is generally preferable, and the court will seek to give parents and their children opportunities to foster positive relationships.

In Matter of Brady S v Darla B, the court was asked to decide whether it was in the best interests of the child to award sole custody to the grandparents or to the child’s father.


This case centers on a custody dispute involving the 12-year old child’s mother, father, and maternal grandparents. The child was born in 2008. The father was convicted of statutory-rape of the mother when the mother was 15-years old and the father was 21-years old. Because of that history, the child’s maternal grandparents do not trust the father and view him as a predator.

In 2009, the court granted the mother sole custody and primary physical residency of the child.  The father, who was in prison, had visitation once per month where he was incarcerated. In 2013, the order was modified awarding joint custody to the maternal grandparents and the mother, with the grandparents enjoying primary physical residency. Pursuant to the same order, the father was awarded limited supervised visits. The order provided that over the court of the year the father’s visits were to increase and were to eventually become unsupervised.

In 2015 the father filed a petition for expanded visitation, noting that the grandparents had refused to expand the parenting time as required by the 2013 order and refused to allow him to have unsupervised visits. In 2017, the court granted the father 60 hours of make-up visits.

On August 14, 2018, the grandparents filed a petition seeking sole custody and the cessation of all the father’s visits. The next month, the mother filed a petition seeking primary physical residency.

Family Court, Monroe County was asked to decide custody and visitation. The grandparents wanted sole custody and the father wanted to full custody. The mother had previously withdrew her request for primary physical residency.  Clearly, the grandparents did not want the father to be part of the child’s life. The court had to decide what custody arrangement would be in the best interests of the child. In deciding what was in the best interests of the child, the court heard testimony from all parties involved and looked closely at the histories of the father and the grandparents with the child as well as their intentions for the future.

At the time of the trial, the father was 33 years old.  He had served prison time for statutory rape of the mother of the child and for violating orders of protection which had been issued in favor of the mother. In the years since he was released from prison, he stopped using illegal drugs and had several years of sustained full-time employment with a single employer.  The father had his own home which had a bedroom for the child. While he and the mother attempted to reconcile, it did not work out. The father expressed an interest in playing a significant role in the life of his child, and during his parenting time they have enjoyed many activities together including skiing, ice skating, and visiting museums and the library. In addition, the father testified that the did not disparage the grandparents or the mother to the child.

The grandparents had been the primarily caregivers of the child for most of her life. With them she had a stable home and thrived academically. They lived in the same house the child’s entire life. Occasionally the mother lived there as well. The grandparents also tended to her medical needs, including making sure she sought appropriate counseling. The grandparents were honest about their disdain for the father and the fact that they did not want him in the child’s life at all. They also were clear that when the child turned 14 they planned on telling her that she was conceived out of rape and that her father should not be a part of her life.



After considering testimony from all parties, the court decided to modify the custody order giving the father and the grandparents joint custody. The child would live primarily with the grandparents and continue to go to school near their home. The father would have increased visitation, including overnight weekends, and the mother would have visitation as well. Because the father and the grandparents did not communicate and the relationship was hostile, the court assigned zones of decisionmaking authority with the grandparents having authority over medical needs and the father over educational and activities.  The grandparents were ordered not to disclose to the child anything about how she was conceived before she became and adult.

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