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Court Discusses Visitation Rights for Grandparents


Petitioner is the paternal grandfather of 2 infants. Respondent is the natural mother of the infants. The children’s father was killed in an accident.

A New York Family Lawyer said the paternal grandfather has petitioned this court for an order directing child visitation with the infants. An amended petition was filed thereafter. The natural mother has opposed the petition, having previously terminated visitation between the paternal grandfather and the children in June 1999.

A New York Custody Lawyer said that, respondent’s attorney filed a motion for dismissal, relying upon the a ruling of the Court where the United States Supreme Court held that a State of Washington statute governing nonparental child visitation infringed on the fundamental right of a parent to make a decision about the care, custody and control of the parent’s child. The Court deemed this a violation of the parental substantive due process guarantee contained in the Fourteenth Amendment. In opposition, petitioner’s attorney has argued that said case should be limited to its facts, and the statute involved in that case was overly broad and is distinguishable from the New York statute.

To the extent applicable here, the New York statute provides as follows: “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 family court pursuant to subdivision (b) of section [651] of the family court act, and on the return thereof, the court, by order, after due notice to the parent may make such directions as the best interest of the child may require, for child visitation rights for such grandparent or grandparents in respect to such child.” Likewise, the Supreme Court affirmed the decision by the Supreme Court of Washington invalidating its statute. The Supreme Court of Washington concluded that its grandparent visitation statute would “allow any person, at any time, to petition for visitation without regard to relationship to the child, without regard to changed circumstances, and without regard to harm.”

In effect, the Washington statute, as worded, equated the parental rights with grandparent rights, and the rights of any other person, related or not. It apparently provided no parental primacy in connection with the care and control of their children.

In New York, there is a two-step process. A Long Island Family Lawyer said first, the issue of standing must be decided. If equitable circumstances exist, or, if one of the parents is deceased, the standing issue is then satisfied. The court next must determine if the best interests of the child indicate that visitation is appropriate. If it is found to be appropriate, then visitation is limited to the grandparents.

The New York courts have been careful to strictly and narrowly construe the statute to the category of relative contained in the statutory language. The grandparent and sibling statute and visitation rules generally do not apply to permit visitation for a person who has no biological or legal connection to the child’s mother, even though the nonrelative resided with the child’s mother and was listed as the father on the child’s birth certificate, but legally was not. Nor have New York courts allowed visitation for a lesbian life partner who was a biological stranger to the child.

A Long Island Child Custody Lawyer said New York, then, limits its child visitation statutes in nonspousal situations to the biologic relative categories allowed by the Legislature. Visitation rights for “any person,” as was the case in the cited jurisprudence, are not permitted.

New York is also careful to be certain that the best interests of the child are properly protected. Visitation with a grandparent who had knowledge of domestic violence and took no action to prevent it or protect the child is not in the best interests of the child, and a parent’s action denying visitation is reasonable. An inadequate response by a paternal grandfather to inappropriate sexual contact can result in visitation denial. If the situation between grandparents and a parent is volatile, that affects best interests and grandparent visitation. On the other hand, adoption alone does not preclude the allowance of visitation, and the privacy rights of the adoptive parents are not invaded. If the visitation will be harmful to the child, New York courts deny it.

There is no question that parents have a fundamental right to make decisions regarding the care, custody and control of their children, and parental autonomy in this regard has long been recognized as a fundamental constitutional right. Notwithstanding such fundamental right, such parental primacy rights are not unfettered or absolute. The best interests of the child is the governing standard in many of these situations, to the point that best interests of a child in most cases justify intervention by the State as parens patriae.

In short, the legislative policy of this State appears clear that, in an appropriate case, the best interests of the child can take precedence over the parent’s right to the care, custody and control of the child. An infant’s welfare is accorded a higher place on the pedestal of personal human rights in this State than parental control of that child.

The fact that a grandparent action may be the mechanism triggering the assertion of the child’s best interests does not automatically give rise to a declaration of infirmity of the parent’s constitutional rights. The issue becomes whether the infringement which occurs is “overly broad” as so applied that such application in effect emasculates the parental primacy right.

In sum, this court reads the cited jurisprudence as instructing that, if a nonparent is given a presumed right, if any person, biologic relative or not, is permitted to question a parental decision, and if some deference is not given to the parental decision, then there is an overly broad statute that violates a parent’s constitutional rights.

The absence of a clear majority opinion by the Court suggests that there is some controversy over the Magistrate’s statement that the Court “need not” define parental due process. As recently as October 26, 2000, another New York court opined “the investiture of visitation rights in [grandparents] would seem to intrude and actually intrude more severely upon parental autonomy than does setting a schedule of visitation”. The quite thorough discussion of the North Dakota finding provides a wealth of information about the law prior to the determination.

In the final analysis, were the motion to be granted, the court believes it would be an overly excessive reading of the instructions. This court views the New York Legislature, and many of the comments, as telling parents and grandparents alike that, given the apparent disappearance of the traditional family, children’s best interests require the opportunity for participation by siblings and grandparents to be sure that the moral obligations of familial relationships are carried out. What used to be known as the common law is not so common any more. Nonbiologic care givers are assuming previous strictly parental roles more and more frequently. To this point, biologic relationships are mandated by New York, but given the dynamics of present personal relationships, the rules may not be standing on sturdy ground, notwithstanding the case. Perhaps a judicially created definition of parents is required as suggested by the Justice. Such is best left to the legislative process, however.

“Cases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child’s best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies”the child”.

In accord with the foregoing, the motion to dismiss the petition be and the same hereby is denied.

A visitation is not just a mere right, the Court determines as to the schedule when it should take place. This is by reason of the circumstances between the spouses. Here in Stephen Bilkis, through our New York Child Visitation attorneys help our clients to visit their children who are under the custody of their spouse. For more inquiries on family matters, contact our New York Family lawyers now and be advised.

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