Grandparents have limited rights to visitation with grandchildren that are balanced against parental rights to control their children.
Famous cultural anthropologist Margaret Mead is credited with saying: "Everyone needs to have access both to grandparents and grandchildren in order to be a full human being." This reciprocal need for each other can become a major issue in situations of divorce or other circumstances that can lead to family splintering when a parent decides that a grandparent is not allowed to see his or her grandchildren.
Parental constitutional rights
The U.S. Supreme Court has established that part of the constitutional rights of parents includes the fundamental liberty interest based in due process that parents have to make decisions about the "care, custody, and control" of their children. Childrearing decisions by a fit parent are to be given material weight in any legal matter that could potentially change those decisions, including a parental decision to keep a grandparent at a distance from a child.
Grandparent visitation laws
For this reason, states have had to craft grandparent visitation laws so as not to violate this parental right. There has to be a significant reason to grant a grandparent the right to time with the grandchild over the objection of a fit parent such as potential harm to the child if not allowed visitation with the grandparent. It also must always be in the child's best interest
New York law
In New York, because of the weight given a parent's decision to deny access to the child, a grandparent (biological or by adoption) may be granted visitation from the court only if either one parent has died or an equitable (fair) reason exists to grant it. It must also be in the child's best interest.
In deciding whether equity supports a grant of visitation and whether it would be in the child's best interest, the court may look at a variety of relevant factors like:
- The extent and nature of the grandparent-grandchild relationship
- The frequency and nature of contact historically
- Grandparent involvement with the child's activities
- History of grandparent providing child care
- History of the child living with the grandparent
- Mental health issues of the grandparent
- Reasons for parent's objection
- The child's preference
- Grandparent behavior that is detrimental to child
- The opinion of the child's lawyer
- Potential harm to the child of contact
This is only an introduction to a complex area of New York law. Each grandparent visitation case can be quite dependant on the unique facts of the relationship as well as the parent's position. Any grandparent desiring to establish visitation rights or any parent with concerns about grandparent visitation should seek legal advice from an experienced family lawyer to understand how the law is likely to apply to the situation and what legal options exist.
Attorney Angela Scarlato of Angela Scarlato & Associates, P.C., in Brooklyn represents grandparents seeking visitation rights as well as parents opposing grandparental visitation.