Grandparent Visitation

This article focuses on analyzing the rights of a fit parent, and explains the New York statutory scheme that provides a grandparent with a qualified right to visitation.'

The Fit Parent

The starting point for this analysis is to appreciate the rights of a fit parent and the circumstances that must be present before the State is allowed to intrude upon family life and require a parent to do something she does not want to do.

The U.S. Supreme Court has held: “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Stanley v. Illinois, 405 U.S. 645, 651 (1972), citing Prince v. Massachusetts, 321 U.S. 158, 166 (1944). The constitutional protection of the rights of a parent has been found to reside within the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment. Stanley, supra, at 651.

The hypothetical client in this case is clearly a “fit parent,” in that she is competent and capable. A parent's right to make significant decisions concerning the custody of her child is constitutionally protected, and the state may not interfere in a fit parent's right absent “extraordinary circumstances.” The latter are defined by the U.S. Supreme Court as “grievous cause or necessity.” See Matter of Bennett v. Jeffreys, 40 NY2d 543, 545-546 (1976), citing the Court's decision in Stanley v. Illinois, supra, at 655.'

Examples of circumstances of “grievous cause or necessity” include acts of commission or omission by a parent that seriously affect the welfare of a child, the preservation of the child's freedom from serious physical harm, illness or death, or the child's right to an education and the like. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 213-215; Pierce v. Society of Sisters, 268 U.S. 510, 535.

The courts have cautioned the State against interfering unless circumstances justify intervention; to that end, the State must not interfere with a parent's right to make decisions merely because it could make a better decision. In response to that caution, the legislature has enacted a statutory scheme that provides standards that the State must adhere to and due process of law for parents whose rights have been interfered with by the State. Examples include the limits placed on the State before it may intervene on behalf of children allegedly neglected by their parents prior to court intervention (see the Social Services Law) and before judicial intervention on behalf of children allegedly neglected by their parents (see Article 10 of the Family Court Act), among others.

A Qualified Right to Seek Visitation

Given the primacy of a parent's right to make decisions concerning her child's care and custody, a grandparent's “right” to visitation over the objection of a parent is a qualified one. A grandparent may seek visitation through the New York Supreme Court (under Domestic Relations Law (DRL) Section 72) or the Family Court (under Family Court Act (FCA) Section 651). The statutes, which are identical, require that a petitioning grandparent meet his first burden by establishing that he has a right to be heard ' a threshold requirement ' in order for the court to consider the grandparent's request for visitation in the “best interests” phase of the litigation.

To satisfy the standing requirement, a grandparent must first plead and prove that either one or both of the child's parents have died or, in the absence of that tragic circumstance, that there are other circumstances ' in fact “extraordinary circumstances,” see Bennett, supra ' where “equity would seek to intervene.” These “extraordinary circumstances” play a role in the argument for standing when both parents are alive, as well as in the proof that a grandparent must provide the court in the “best interests” phase of the litigation in order to rebut the presumption in favor of a fit parent who has decided not to allow access or agree to an imposed access schedule.

The first possible basis for standing ' the death of a parent ” is easily proven, but the second is not: Under what circumstances would “equity seek to intervene” when both parents are alive? Courts of this State have intervened where a “special relationship” existed between the grandparent and the child, which relationship exceeded what is accepted as the typical, or perhaps traditional, grandparent relationship. These “special relationships” must entail characteristics and responsibilities that a parent normally enjoys with his or her child. Examples include extended periods of time in which the child lived with the grandparent, and the like.

To illustrate, in E.S. v. P.D., 8 NY3d 150 (2007), the grandmother was found to have a special relationship with her grandchild that gave her standing to seek visitation over a parent's objections (although standing was achieved by virtue of the death of a parent). Evidence showed that the grandmother essentially took over the mother's household and child-rearing duties while the mother lay ill and dying. Following the mother's death, the father invited the grandmother to continue to help out with these chores and with the care of the now four-year-old grandchild. This she did for three and a half years.

The court noted, “During that time, grandmother comforted, supported and cared for the motherless child. She got him ready for school, put him to bed, read with him, helped him with his homework, cooked his meals, laundered his clothes and drove him to school and to doctor's appointments and various activities, including gym class, karate class, bowling, soccer, Little League baseball and swimming class. She arranged and transported him to away-from-home or supervised at-home play dates; she took him to the public library and introduced him to the game of chess. From 1998 through 2001, the child and father spent entire summers at grandmother's home in East Hampton, where the child's maternal first cousins and other family members were frequently present as well.”

By the fall of 2001, the father and grandmother's relationship had become strained, apparently due to the grandmother's tendency to be permissive with the child, while the father wanted to be more strict. He felt the grandmother was imposing her child-rearing philosophy on him, undermining his authority and coming between him and his son. In February 2002, the father abruptly evicted the grandmother from the house while the child was away on a play date. For approximately two months afterward, he forbade any contact between the boy and his grandmother, then began allowing short supervised visits and occasional phone calls.

The grandmother sought judicial intervention after what she described as the “last straw,” when she was kept waiting for four hours for one of these scheduled visits. She commenced a proceeding pursuant to DRL ' 72 and Family Court Act
' 651 for an order granting reasonable visitation with the child. The father opposed the grandmother's motion, and cross-moved for an order prohibiting the grandmother from having any contact with the child.

The Court of Appeals found that the grandmother had established “an extraordinarily close relationship [with the child] during the nearly five-year period that she lived with him and [father].” E.S., supra, at 157.

The court went on to consider the factors in making a best interests determination, including the presumption in favor of the fit parent's wishes. We will discuss these subjects in the second part of this article.

Barry Abbott is a partner at Mayerson Abramowitz & Kahn, LLP. Alton L. Abramowitz, a senior partner at the firm, is President of the American Academy of Matrimonial Lawyers and Vice Chair of the Family Law Section of the New York State Bar Association.

A client comes to your office and explains that her husband died recently and that she is the mother of school-age children. After expressing your condolences, you learn that your client's mother-in-law has demanded a regular schedule of visitation, but the client does not trust her. She believes, from past experience, that the grandmother is intrusive and will be more intrusive now that her son has died, and she is most concerned that her mother-in-law will undermine her role with her children. During the interview you learn that the mother-in-law has had a divisive influence on members of her own family.'

The client, although sad and understandably upset, is educated, intelligent, and clearly a caring, fit parent (the latter term having significant implications in the analysis to follow). She begins to cry, reaches for her bag and removes some papers that she spreads out on your desk ' a family court visitation summons and petition that she was recently served. She is due in court in a week.

The client tells you, in no uncertain terms, that she does not want a regular schedule of visitation between her mother-in-law and her young children who, you learn, are suffering the recent loss of their father in different ways. What do you tell the client? Can she resist the grandmother? Should she offer visits in the meantime? Will the court mandate visits over her objection?

This article focuses on analyzing the rights of a fit parent, and explains the New York statutory scheme that provides a grandparent with a qualified right to visitation.'

The Fit Parent

The starting point for this analysis is to appreciate the rights of a fit parent and the circumstances that must be present before the State is allowed to intrude upon family life and require a parent to do something she does not want to do.

The U.S. Supreme Court has held: “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Stanley v. Illinois , 405 U.S. 645, 651 (1972), citing Prince v. Massachusetts , 321 U.S. 158, 166 (1944). The constitutional protection of the rights of a parent has been found to reside within the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment. Stanley, supra, at 651.

The hypothetical client in this case is clearly a “fit parent,” in that she is competent and capable. A parent's right to make significant decisions concerning the custody of her child is constitutionally protected, and the state may not interfere in a fit parent's right absent “extraordinary circumstances.” The latter are defined by the U.S. Supreme Court as “grievous cause or necessity.” See Matter of Bennett v. Jeffreys , 40 NY2d 543, 545-546 (1976), citing the Court's decision in Stanley v. Illinois, supra, at 655.'

Examples of circumstances of “grievous cause or necessity” include acts of commission or omission by a parent that seriously affect the welfare of a child, the preservation of the child's freedom from serious physical harm, illness or death, or the child's right to an education and the like. See, e.g., Wisconsin v. Yoder , 406 U.S. 205, 213-215; Pierce v. Society of Sisters , 268 U.S. 510, 535.

The courts have cautioned the State against interfering unless circumstances justify intervention; to that end, the State must not interfere with a parent's right to make decisions merely because it could make a better decision. In response to that caution, the legislature has enacted a statutory scheme that provides standards that the State must adhere to and due process of law for parents whose rights have been interfered with by the State. Examples include the limits placed on the State before it may intervene on behalf of children allegedly neglected by their parents prior to court intervention (see the Social Services Law) and before judicial intervention on behalf of children allegedly neglected by their parents (see Article 10 of the Family Court Act), among others.

A Qualified Right to Seek Visitation

Given the primacy of a parent's right to make decisions concerning her child's care and custody, a grandparent's “right” to visitation over the objection of a parent is a qualified one. A grandparent may seek visitation through the New York Supreme Court (under Domestic Relations Law (DRL) Section 72) or the Family Court (under Family Court Act (FCA) Section 651). The statutes, which are identical, require that a petitioning grandparent meet his first burden by establishing that he has a right to be heard ' a threshold requirement ' in order for the court to consider the grandparent's request for visitation in the “best interests” phase of the litigation.

To satisfy the standing requirement, a grandparent must first plead and prove that either one or both of the child's parents have died or, in the absence of that tragic circumstance, that there are other circumstances ' in fact “extraordinary circumstances,” see Bennett, supra ' where “equity would seek to intervene.” These “extraordinary circumstances” play a role in the argument for standing when both parents are alive, as well as in the proof that a grandparent must provide the court in the “best interests” phase of the litigation in order to rebut the presumption in favor of a fit parent who has decided not to allow access or agree to an imposed access schedule.

The first possible basis for standing ' the death of a parent ” is easily proven, but the second is not: Under what circumstances would “equity seek to intervene” when both parents are alive? Courts of this State have intervened where a “special relationship” existed between the grandparent and the child, which relationship exceeded what is accepted as the typical, or perhaps traditional, grandparent relationship. These “special relationships” must entail characteristics and responsibilities that a parent normally enjoys with his or her child. Examples include extended periods of time in which the child lived with the grandparent, and the like.

To illustrate, in E.S. v. P.D. , 8 NY3d 150 (2007), the grandmother was found to have a special relationship with her grandchild that gave her standing to seek visitation over a parent's objections (although standing was achieved by virtue of the death of a parent). Evidence showed that the grandmother essentially took over the mother's household and child-rearing duties while the mother lay ill and dying. Following the mother's death, the father invited the grandmother to continue to help out with these chores and with the care of the now four-year-old grandchild. This she did for three and a half years.

The court noted, “During that time, grandmother comforted, supported and cared for the motherless child. She got him ready for school, put him to bed, read with him, helped him with his homework, cooked his meals, laundered his clothes and drove him to school and to doctor's appointments and various activities, including gym class, karate class, bowling, soccer, Little League baseball and swimming class. She arranged and transported him to away-from-home or supervised at-home play dates; she took him to the public library and introduced him to the game of chess. From 1998 through 2001, the child and father spent entire summers at grandmother's home in East Hampton, where the child's maternal first cousins and other family members were frequently present as well.”

By the fall of 2001, the father and grandmother's relationship had become strained, apparently due to the grandmother's tendency to be permissive with the child, while the father wanted to be more strict. He felt the grandmother was imposing her child-rearing philosophy on him, undermining his authority and coming between him and his son. In February 2002, the father abruptly evicted the grandmother from the house while the child was away on a play date. For approximately two months afterward, he forbade any contact between the boy and his grandmother, then began allowing short supervised visits and occasional phone calls.

The grandmother sought judicial intervention after what she described as the “last straw,” when she was kept waiting for four hours for one of these scheduled visits. She commenced a proceeding pursuant to DRL ' 72 and Family Court Act
' 651 for an order granting reasonable visitation with the child. The father opposed the grandmother's motion, and cross-moved for an order prohibiting the grandmother from having any contact with the child.

The Court of Appeals found that the grandmother had established “an extraordinarily close relationship [with the child] during the nearly five-year period that she lived with him and [father].” E.S., supra, at 157.

The court went on to consider the factors in making a best interests determination, including the presumption in favor of the fit parent's wishes. We will discuss these subjects in the second part of this article.

Barry Abbott is a partner at Mayerson Abramowitz & Kahn, LLP. Alton L. Abramowitz, a senior partner at the firm, is President of the American Academy of Matrimonial Lawyers and Vice Chair of the Family Law Section of the New York State Bar Association.