Grandparent Visitation

Following the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57 (2000), regarding grandparent visitation and its impact on the right of a fit parent to make custodial decisions, the New York Court of Appeals, reiterating its holding in Bennett, upheld the constitutionality of DRL Section 72(1) because it accords “deference” to a parent's decision. The court warned that “the courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one.” Matter of E.S. v. P.D., 8 NY3d 150, 157 (2007).”

Three years before its decision in E.S. v. P.D., the' Court of Appeals, in stressing the deference that a state must give to the child-rearing decisions of fit parents, took the following excerpt from the Troxel decision:

In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision [restricting visitation] becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination.

Matter of Wilson v. McGlinchey, 2 NY3d 375, 380 (2004), quoting Troxel, 530 U.S. at 70.

(The issue in Wilson was whether an existing grandparent visitation order should be modified based upon the parents' allegation that the visits were not going well and were causing the children and the parent a significant amount of stress and anxiety.)

'Strong Presumption'

In the seven-year period between Troxel and E.S. v. P.D., a fit parent's decision, in the context of a grandparent visitation dispute, moved from having “some special weight” (Troxel) to the Court of Appeals' imposition of a strong “presumption” in favor of that decision. The law in New York is clear: The court must not interfere with the decision of a fit parent in the absence of proof that rebuts the presumption.'

The proof required to rebut the presumption must rise to the level of a compelling State purpose that furthers the child's best interests. The burden is a heavy one. (“To compel visitation over the [parent's objections] does raise serious constitutional and human rights issues as it invades the rights of the parents to rear their children without state interference. For the courts to invade parental rights, the case must be clear-cut and compelling.' Not surprisingly, few cases are.”' Scheinkman, Supp. Practice Commentaries, McKinney's Cons Laws of NY, Domestic Relations Law C72:2).

Best Interests: Review of the Equitable Circumstances

Courts faced with making a best interests determination must review the equitable circumstances, which include the nature and basis of the parent's objection to visitation as well as the nature and extent of the grandparent-grandchild relationship. Matter of Emanuel S. v. Joseph E., 78 NY2d 178 (1991). The circumstances bearing upon the best interest determination include “the reasonableness of the [parent]'s objections to grandmother's access to the child, her caregiving skills and attitude towards [the parent], the law guardian's assessment and the child's wishes.” E.S. v. P.D., 8 NY3d at 160-161.'

The circumstances to be weighed by the court are similar to those in an inter-parent visitation or custody dispute; however, although enmity between parents of a child may not affect a parent's visitation right, grandparent visitation under Domestic Relations Law ' 72 implicates different equitable concerns. Wilson v. McGlinchey, 2 NY3d at 382. See Emanuel S. v. Joseph E., 78 NY2d at 181-182. The Court of Appeals “made clear in Wilson [that] the problems created by parent-grandparent antagonism cannot be ignored.” E.S. v. P.D., 8 NY3d at 157.'

Parent-grandparent antagonism, standing alone, is not sufficient reason to deny visitation. Rather, it is the impact on the child that is determinative, and denial of visitation is appropriate when animosity is “coupled with family dysfunction” that “infect(s) visitation.” Gloria R. v. Alfred R., 209 AD2d 179 (1st Dept. 1994). Courts may deny visitation where the child has “obvious psychological difficulty dealing with the polarization of his family.” Wenskoski v. Wenskoski, 266 AD2d 762 (3d Dept. 1999).

Best Interests: the Children's Wishes

The children's preferences, if they are capable of verbalizing them, are a relevant factor to the court's best-interests determination. See Koppenhoefer v. Koppenhoefer, 159 AD2d 113, 116-117 (2d Dept. 1990). While the children's wishes are not determinative (Wenskoski, 266 A.D.2d at 763), their wishes are “entitled to greater weight.” Matter of Jennifer G. v. Benjamin H., 84 AD3d 1433, 1434 (3d Dept. 2009). See also Matter of Decoursy v. Poplawski, 61 A.D.3d 974 (2d Dept. 2009).

What to Tell the Client

In the introductory paragraph of Part One of this article, which appeared in last month's Issue, we posed a hypothetical fact pattern of a recently widowed mother whose mother-in-law has sued for visitation. She wants to know: Can she resist the grandmother? Should she offer visits in the meantime? Will the court mandate visits over her objection? Although all family law cases are fact-specific, you can confidently advise a fit parent that a reasoned refusal to agree to a schedule of grandparent visitation, whether on an interim or final basis, must be respected by the court. Although the court may, in its initial reaction to the dispute, put pressure on the parent to allow some access, it must respect a fit parent's decision ' whether on pre-hearing or final access ' and withhold its own subjective opinion as to what is in the child's best interests.

Conclusion

A court deciding a petition for grandparent visitation must undertake a two-part inquiry. First, it must determine whether the grandparent has standing to petition for visitation rights based on the death of a parent or equitable circumstances. If the court concludes that the grandparent has established the right to be heard, then it must determine if visitation is in the best interests of the child, with significant weight given to a fit parent's wishes, which are strongly presumed to be in the child's best interests.

Barry Abbott is a partner at Mayerson Abramowitz & Kahn, LLP. Alton L. Abramowitz, a senior partner at Mayerson Abramowitz & Kahn, LLP and a member of this newsletter's Board of Editors, is also President of the American Academy of Matrimonial Lawyers and Vice-Chair of the Family Law Section of the New York State Bar Association.

Last month, we looked at how a grandparent may establish standing to seek visitation with a grandchild over the objections of the parent. Once this predicate showing is made, the grandparent must next overcome the presumption in favor of the fit parent if he or she wants to get court-ordered visitation rights.

The Presumption in Favor of the Fit Parent

Prior to the enactment of Domestic Relations Law (DRL) Section 72 and Family Court Act (FCA) 651, grandparents had no standing to seek visitation against the wishes of a custodial parent. Matter of Emanuel S. v. Joseph E. , 78 NY2d 178, 180 (1991). Now, if a court concludes that a grandparent has established standing ' and, thus, has the right to be heard ' then it may move forward with a best-interests determination. Wilson v. McGlinchey , 2 NY3d at 380. (1991).

Following the United States Supreme Court's decision in Troxel v. Granville , 530 U.S. 57 (2000), regarding grandparent visitation and its impact on the right of a fit parent to make custodial decisions, the New York Court of Appeals, reiterating its holding in Bennett , upheld the constitutionality of DRL Section 72(1) because it accords “deference” to a parent's decision. The court warned that “the courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one.” Matter of E.S. v. P.D. , 8 NY3d 150, 157 (2007).”

Three years before its decision in E.S. v. P.D., the' Court of Appeals, in stressing the deference that a state must give to the child-rearing decisions of fit parents, took the following excerpt from the Troxel decision:

In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision [restricting visitation] becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination.

Matter of Wilson v. McGlinchey , 2 NY3d 375, 380 (2004), quoting Troxel , 530 U.S. at 70.

(The issue in Wilson was whether an existing grandparent visitation order should be modified based upon the parents' allegation that the visits were not going well and were causing the children and the parent a significant amount of stress and anxiety.)

'Strong Presumption'

In the seven-year period between Troxel and E.S. v. P.D., a fit parent's decision, in the context of a grandparent visitation dispute, moved from having “some special weight” (Troxel) to the Court of Appeals' imposition of a strong “presumption” in favor of that decision. The law in New York is clear: The court must not interfere with the decision of a fit parent in the absence of proof that rebuts the presumption.'

The proof required to rebut the presumption must rise to the level of a compelling State purpose that furthers the child's best interests. The burden is a heavy one. (“To compel visitation over the [parent's objections] does raise serious constitutional and human rights issues as it invades the rights of the parents to rear their children without state interference. For the courts to invade parental rights, the case must be clear-cut and compelling.' Not surprisingly, few cases are.”' Scheinkman, Supp. Practice Commentaries, McKinney's Cons Laws of NY, Domestic Relations Law C72:2).

Best Interests: Review of the Equitable Circumstances

Courts faced with making a best interests determination must review the equitable circumstances, which include the nature and basis of the parent's objection to visitation as well as the nature and extent of the grandparent-grandchild relationship. Matter of Emanuel S. v. Joseph E. , 78 NY2d 178 (1991). The circumstances bearing upon the best interest determination include “the reasonableness of the [parent]'s objections to grandmother's access to the child, her caregiving skills and attitude towards [the parent], the law guardian's assessment and the child's wishes.” E.S. v. P.D. , 8 NY3d at 160-161.'

The circumstances to be weighed by the court are similar to those in an inter-parent visitation or custody dispute; however, although enmity between parents of a child may not affect a parent's visitation right, grandparent visitation under Domestic Relations Law ' 72 implicates different equitable concerns. Wilson v. McGlinchey , 2 NY3d at 382. S ee Emanuel S. v. Joseph E., 78 NY2d at 181-182. The Court of Appeals “made clear in Wilson [that] the problems created by parent-grandparent antagonism cannot be ignored.” E.S. v. P.D. , 8 NY3d at 157.'

Parent-grandparent antagonism, standing alone, is not sufficient reason to deny visitation. Rather, it is the impact on the child that is determinative, and denial of visitation is appropriate when animosity is “coupled with family dysfunction” that “infect(s) visitation.” Gloria R. v. Alfred R. , 209 AD2d 179 (1st Dept. 1994). Courts may deny visitation where the child has “obvious psychological difficulty dealing with the polarization of his family.” Wenskoski v. Wenskoski , 266 AD2d 762 (3d Dept. 1999).

Best Interests: the Children's Wishes

The children's preferences, if they are capable of verbalizing them, are a relevant factor to the court's best-interests determination. See Koppenhoefer v. Koppenhoefer , 159 AD2d 113, 116-117 (2d Dept. 1990). While the children's wishes are not determinative ( Wenskoski , 266 A.D.2d at 763), their wishes are “entitled to greater weight.” Matter of Jennifer G. v. Benjamin H. , 84 AD3d 1433, 1434 (3d Dept. 2009). See also Matter of Decoursy v. Poplawski , 61 A.D.3d 974 (2d Dept. 2009).

What to Tell the Client

In the introductory paragraph of Part One of this article, which appeared in last month's Issue, we posed a hypothetical fact pattern of a recently widowed mother whose mother-in-law has sued for visitation. She wants to know: Can she resist the grandmother? Should she offer visits in the meantime? Will the court mandate visits over her objection? Although all family law cases are fact-specific, you can confidently advise a fit parent that a reasoned refusal to agree to a schedule of grandparent visitation, whether on an interim or final basis, must be respected by the court. Although the court may, in its initial reaction to the dispute, put pressure on the parent to allow some access, it must respect a fit parent's decision ' whether on pre-hearing or final access ' and withhold its own subjective opinion as to what is in the child's best interests.

Conclusion

A court deciding a petition for grandparent visitation must undertake a two-part inquiry. First, it must determine whether the grandparent has standing to petition for visitation rights based on the death of a parent or equitable circumstances. If the court concludes that the grandparent has established the right to be heard, then it must determine if visitation is in the best interests of the child, with significant weight given to a fit parent's wishes, which are strongly presumed to be in the child's best interests.

Barry Abbott is a partner at Mayerson Abramowitz & Kahn, LLP. Alton L. Abramowitz, a senior partner at Mayerson Abramowitz & Kahn, LLP and a member of this newsletter's Board of Editors, is also President of the American Academy of Matrimonial Lawyers and Vice-Chair of the Family Law Section of the New York State Bar Association.