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Grandparent Custody

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

In 2003, the New York State Legislature amended Domestic Relations Law Section 72, originally enacted to provide grandparents with the right to seek visitation rights with their grandchildren. The new 2003 law further assists grandparents who want to seek custody of their grandchildren.


A parent's right to child custody has long been recognized by the Supreme Court of the United States as a liberty protected by the U.S. Constitution. Stanley v. Illinois, 405 US. 645; Meyer v. Nebraska, 262 U.S. 390.

In 1976, the New York State Court of Appeals held that when a custody dispute between a parent and a non-parent arose, the parent's superior right to custody could be disturbed only if extraordinary circumstances are proven and if it can be shown that it is in the child's best interest for a non-parent to have custody: ;Bennet v. Jeffreys, 40 N.Y. 2d 543, 387 N.Y.S. 2d 821 (1976) . Examples of extraordinary circumstances are when a parent is unfit, where there is persistent neglect of a child by a parent, or where the parent abandons the child.

The Bennet case involved a 15-year-old unwed mother who gave birth to her child while living with her parents. Under pressure from her mother, the girl reluctantly transferred the child to the care of Ms.Jeffreys, a former classmate of her mother. Ms. Jeffreys failed to adopt the child because she couldn't afford to.

When the natural mother was 23 and about to graduate from college, she brought a proceeding in Family Court to obtain custody of her child. But the Family Court dismissed the petition, directing that custody of the child remain with Ms. Jeffreys. The natural mother was awarded visitation rights.

The Appellate Division reversed the decision of the Family Court and directed Ms Jeffreys to return custody to the natural mother because the natural mother had not surrendered nor abandoned the child, and was not unfit.

But the Court of Appeals then reversed the Appellate Division, finding that where "extraordinary circumstances" exist such as an extended separation of the child from his or her biological parents, the best interests of the child were superior to the custody rights of a biological parent. Thus, Bennet v. Jeffreys created a "two pronged" test for a non-parent seeking custody, i.e. proving extraordinary circumstances and showing it is in the child's best interest for the applicant to be granted custody.

The New 2003 Law

The recent amendments to Section 72 of the Domestic Relations Law recognize the special legal relationship between New York grandparents and their grandchildren and that grandparents are the natural substitute guardians for their grandchildren.

Although the statute does not alter the "extraordinary circumstances" test set forth by the Court of Appeals in Bennett v.Jeffreys, it does create an additional "extraordinary circumstance", i.e. an "extended disruption of custody."

The statute defines this as including, but not limited to "a prolonged separation of the respondent parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents. Nevertheless, the Court may find that extraordinary circumstances exist even if the prolonged separation lasted for less than twenty-four months."

The Current Law's Effect on Grandparents

This legislation is too new to have much interpretation by the Appellate Courts of this state. Because the law is still being tested, it makes sense to consult with an attorney who is highly experienced in this area of the law. It can make the difference between success and failure.

It is clear, however, that grandparents need no longer fear that children in their care for years, will be returned to unstable parents. Grandparents need no longer fear emotional and financial blackmail at the hands of such parents who use their superior rights over the children as a threat.

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