By Sari M. Friedman, Legal Counsel
Fathers' Rights Association (NYS and Long Island)
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
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.
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.