The Law Offices of John Ferrara

What Are Grandparents’ Rights In Child Custody Cases?


A parent has a claim of custody of his or her child that is superior to that of all others, absent surrender, abandonment, persistent neglect, unfitness, disruption of custody over a prolonged period of time or the existence of other extraordinary circumstances’ ” (Bennett v. Jeffreys, 40 N.Y.2d 543, 546 [1976]). A finding of extraordinary circumstances is rare, and the circumstances must be such that they drastically affect the welfare of the child. (Matter of Thompson v. Bray, 148 A.D.3d 1364, 1365 [3rd Dept. 2017]). “The burden of proof to make a threshold showing of extraordinary circumstances rests upon the nonparent, and only when that burden has been satisfied may the court turn to a custody analysis premised upon consideration of the child’s best interests” (Matter of Jennifer BB. v. Megan CC., 150 A.D.3d 1340, 1341, 53 N.Y.S.3d 725 [3rd Dept. 2017] [citations omitted]).

In evaluating whether extraordinary circumstances exist, factors the courts consider included “the overall length of time the child has lived with the nonparent and the quality of that relationship, the particular circumstances existing at the time [custody was awarded to] the nonparent, the length of time the parent allowed such [an] order to continue without attempting to assume the primary parental role and the specific provisions and conditions, if any, of [such] order” (id. at 862). (Campbell v. Campbell, 9 A.D.3d 620, 621-622 [3rd Dept 2004]; Matter of McDevitt v Stimpson, 1 AD3d 811, 812 [3rd Dept. 2003], lv denied 1 NY3d 509 [2004]). With respect to grandparents, the legislature has enacted a statute that establishes an “extended disruption of custody” shall include, but not be 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.” (DRL 72-2-b).

An extended disruption of custody of the child cared for by a grandparent constitutes an extraordinary circumstance. (DRL 72-2-a). We must understand that an interrupted disruption of custody for less than twenty-four months can still be extraordinary circumstances. (DRL 72-2-b). Further, and of some importance, this statute only applies to grandparents, not great grandparents (David M. v. Lisa M., 207 A.D.2d 623 [3rd Dept. 1994]; see also Matter of Hantman v. Heller, 213 A.D.2d 637 [2nd Dept. 1995]) or step-grandparents. Said differently, in a contest between a parent and a nonparent, the best interests of a child do not matter and the court should not consider the child’s best interest unless and until the nonparent proves the extraordinary circumstances. Grandparents can also win visitation rights. But courts should not lightly intrude on the family relationship against a fit parent’s wishes. (E.S. v. P.D., 8 N.Y.3d 150, 157 [2007]).

Where either or both of the parents of a minor child is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply for visitation rights for such grandparent or grandparents in respect to such child. (DRL 72-1). New York’s grandparent visitation statute has survived a challenges to its constitutionality. (E.S. v. P.D., 8 N.Y.3d 150 [2007]). To prevail a grandparent must first prove standing and second prove the visitation is in the child’s best interest standing occurs either when a parent is deceased or when “equitable circumstances which permit the court to entertain the petition.” (Emanuel S. v. Joseph E., 78 N.Y.2d 178 [1991]). The courts have defined these equitable circumstances as “a sufficient existing relationship with their grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court’s intervention.” (Emanuel S. v. Joseph E., 78 N.Y.2d 178, 182 [1991]).

After proving standing, the grandparent must also prove it is in the child’s best interest for grandparent visitation. (Wilson v. McGlinchey, 2 N.Y.3d 375 [2004]). Failure on either standing or best interest if fatal to the grandparent’s application.

What Are The Common Issues That You Handle In Child Custody Cases?

Sadly, we have many cases involving substance abuse and domestic violence. In addition to the normal strain a divorce or separation of one’s parents’ places on a child these additional troubles of a parent can make one’s childhood even more challenging. We also see many highly acrimonious contests where the parties seem to disagree about every fact except the name and date of birth of their child.

For more information on Grandparents’ Custody Rights In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (845) 794-1303 today.

Call now for a Strategy Session
(845) 794-1303

Related Articles

Follow Us On