GRANDPARENT VISITATION

By Sari M. Friedman, Legal Counsel
Fathers Rights Association NY and LI

In the year 2000, the United States Supreme Court, in a case called Troxel v. Granville, ruled that Washington State's non-parent visitation statute is unconstitutional. The question is, how does that affect grandparent visitation rights in New York?

New York Non-Parent Visitation Law

If a grandparent, or grandparents, seek visitation rights when both of the child(ren)'s parents are alive, Section 72 of the Domestic Relations Law of the State of New York, requires the Court to seek to first determine if the grandparents have standing to seek visitation. To determine whether standing exists, state law shows the Court looks at the history of the relationship between grandparents and child. Was there regular contact? Have the grandparents made diligent efforts to have regular contact with their grandchildren? Did the parents frustrate any attempt at a relationship, and if so, why? In other words, the nature and the extent of the grandparent/grandchild relationship is an essential part of the inquiry. So too is the nature and the basis of a parent's objection to visitation. The Court will then determine if it is in the best interests of the child to have grandparent visitation.

Things are a little easier if one of the child's parents is deceased. Here, the main criterion is simply the child's best interest to have grandparent visitation.

To sum it all up, the nature and extent of the grandparent-grandchild relationship is an essential part of the Court's inquiry. So too is the nature and basis of the parents' objection to visitation. In other words, the Court analyzes what it requires of grandparents in the context of what circumstances allowed them to reasonably do.

How Does the Supreme Court Ruling Affect New York?

In determining that Washington State's Non-parent Visitation Statute was unconstitutional, the United States Supreme Court made it clear that it rested its decision on the sweeping breadth of the Washington statute which allowed anyone (not just grandparents) to seek visitation. The Supreme Court did not consider whether all non-parent visitation statutes must be stricken as violating parental rights to make decisions concerning the care and control of their children.

In New York, the question became whether, after Troxel, the Courts would continue to grant grandparent visitation under DRL Section 72 and existing case law, or would they conclude that such law is unconstitutional after the Supreme Court's Troxel decision.

Two family courts in New York have held that it would not apply Troxel in applications before it for grandparent visitation. The first family court was in the Appellate Division Second Judicial Dept. , case entitled Smolen v. Smolen and the second was in the Fourth Appellate Dept. entitled Fitzpatrick v. Young.

Conclusion

Thus, in New York, a grandparent who wants visitation may seek the same even after the United States Supreme Court's Troxel decision. If the grandparent can establish standing as detailed above, and is able to show that it is in the child's best interest to have visitation, then the Court should order visitation.