CAN GRANDPARENTS BE DENIED VISITATION WITH GRANDCHILDREN?
Death, Divorce, Full-Blown Custody Wars – These tragic events can leave grandparents unable to visit their own grandchildren due to an unfriendly or uncooperative former son-in-law or daughter-in-law. Fortunately, New York State has a statute recognizing a grandparent’s right to visitation with their grandchildren. New York’s Domestic Relations Law §72 specifically provides that a grandparent may apply for visitation rights “where circumstances show that conditions exist which equity would see fit to intervene.”
Traditionally, the wishes of the parent were controlling and visitation with grandchildren by grandparents could be denied. While the wishes of the parent are still weighed heavily by the Courts, a grandparent who can present evidence to show a prior existing relationship (or efforts to establish a loving relationship) may win the opportunity to enforce visitation rights. Once the Court determines that a grandparent has standing to seek visitation, it will be guided by the best interests of the grandchildren.
In Erlich v. Ressner, an appeal was brought by a grandfather to reverse the lower court’s decision to dismiss his visitation petition. The Appellate Division reversed the lower court and reasoned that: “visits with a grandparent are often a precious part of a child’s experience and there are benefits which devolve upon the grandchild which he cannot derive from any other relationship.”
In Vacula v. Blume the Appellate Division was faced with a case where the relationship between the mother of the child and the grandparents was particularly strained. In directing the lower court to increase the grandparent’s visitation rights, the Court ruled that “animosity between the mother of the children and their grandparents is not a proper basis for the denial of visitation privileges to the grandparents; nor is it a proper yardstick by which to measure the best interests of the children.”
In Matter of Emanuel, the Court of Appeals (New York State’s highest Court) reversed the Appellate Division which had held grandparents were prohibited from seeking visitation where the child’s natural parents object and neither parent had forfeited parental responsibility. In this case the Court reasoned that “the nature and basis of the parent’s objection to visitation are among the several circumstances which should be considered . . . “ but also reasoned that “an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship.”
These cases indicates that the highest courts in this State understand the value of a grandparent-grandchild relationship and that the courts will enforce grandparent visitation rights where such visitation would be in the best interests of the grandchildren.