Grandparents’ Custody and Visitation Rights

At this historic time in our lives, when families are dealing with the dire consequences of the pandemic, the desire and need for family ties has become front and center for many. With children learning from home and parents working remotely, the need for family assistance from grandparents has increased substantially. Many families would not be able to function without the help of grandparents. However, what about the devastation when a grandparent is prevented from having a relationship with their grandchildren? Besides the loss of a support system, there is a real deficit to the family, especially the important relationship between grandparents and grandchildren.

Founding partner Jerome Wisselman of the family law firm Wisselman, Harounian & Associates, P.C. recently gave a presentation about the rights of grandparents for the NYC Department for the Aging. He spoke about the rights of grandparents to have a relationship with their grandchildren and how to establish visitation and even custody with their grandchildren, should there be serious conditions warranting this. He explained the steps that can be taken from a legal perspective to help grandparents and grandchildren maintain a healthy relationship.

How does a grandparent maintain their relationship with their grandchild?

The initial step in such situations would be to enable visitation so that grandparents do not lose the right to spend time with their grandchild. If a grandparent’s contact with the grandchild is being reduced or terminated by the parent, there is a path the grandparent can take to restore this precious contact. Attempts to shut out the grandparent may arise from several family circumstances including parental drug abuse, divorce, or mental health issues. To re-establish contact with their grandchildren, the grandparents can bring a petition to family court to request visitation. Once this is initiated, there is then a two-step procedure to follow:

1. First, the grandparent must establish standing. Standing is automatically established if one of the parents is deceased. But if both parents are still alive, the grandparent must show that a relationship had existed between the grandparent and grandchild or that the grandparent attempted a relationship, but it was not allowed by the parents. If standing is not established, then the case is closed, and no visitation is awarded.

2. Once standing is established, the next step is to demonstrate that it is in the child’s best interest for this visitation to occur. This considers the child’s relationship with the grandparent, the parents, and the consequences to the child of making such a change. If the court decides that it is in the child’s best interest, they will consider setting up a visitation arrangement. Visitation can range from approximately once a month to frequent overnight visits.

Can a grandparent petition for custody?

Sometimes situations exist where parents become unfit to parent whether it be from drugs, alcohol, health issues or some other dysfunction. In these circumstances, grandparents often come to the grandchild’s rescue, sacrificing their “golden years” of freedom to take on the parenting of their grandchild. Often, the actual parent is inclined to “take back” their child before they are emotionally stable and capable of caring for their child. To address this and other situations, where the parents are truly not equipped to care for their children, the grandparent can petition for custody. Like visitation, the petition for custody is a two-step process:

1. The grandparent must again establish standing. In the case of custody, there is a higher bar to prove standing. The grandparent must demonstrate the existence of “extraordinary circumstances” which warrant the need for them to assume custody of the grandchild over the actual parent(s). Extraordinary circumstances involve more severe issues of being unfit to parent, such as a parent’s psychiatric disturbance, drug or alcohol problems, incarceration, domestic or child abuse, among other indicators.

2. Once the judge decides there is standing, the grandparent must also establish that custody with the grandparent is in the child’s best interest. The fact that the grandparent can provide better economically for the child than the parent is not enough of a reason. There are many factors that go into the judge’s final decision to grant the grandparent custody. These include:

• The relative physical and mental health of the grandparent,
• The grandparent’s ability to care for the educational, developmental, medical, and emotional needs of the child,
• The availability of the grandparent to the child (how much time they can be with the child),
• Their willingness to promote a continued relationship with the parents and extended family,
• The quality of the home environment,
• The love and affection the child has for the grandparent, and
• The financial resources of the grandparent.

In other cultures of the world, such as Asia, India, and parts of Europe, the grandparent is bestowed a highly respected role among families. In this country, it has taken longer for the grandparent to be recognized and appreciated as an important figure in a family and child’s life. Over the last 20 years the courts have worked on supporting the rights and benefits of grandparents spending time with their grandchildren, and if necessary, gaining custody.

Should you be having trouble connecting with your grandchildren, or if your parental children are preventing you from doing so, don’t hesitate to contact family law attorney and managing partner Jerome Wisselman. He has been an advocate for and involved in developing legislation to protect grandparents’ rights, and he will answer any of your questions and concerns.