Can Ex Keep Children From Their Grandparents?
After a divorce on Long Island and depending on whatever child custody agreement you and your partner have entered into, a child may find that the environment he or she has become accustomed to has been turned upside down. In these instances, it is helpful to keep as many constants in your child’s life as possible. These constants may include their friends, pets, room color, and perhaps most importantly, their grandparents.
It often comes as a surprise to Long Island couples that their children’s grandparents are not automatically awarded visitation rights upon your divorce. If you are the non-custodial parent you should be aware that the custodial parent is legally allowed to keep your parents from seeing their grandchildren. As harsh as this might seem, sadly, some non-custodial parents find themselves in this dilemma, and if you happen to be one of those individuals, the following may be useful to you in determining what rights your parents have to see their grandchildren.
Why Aren’t These Rights Automatic?
The United States Supreme Court has decided that a parent’s right to raise their children as they wish is a fundamental right and they therefore have the right to deny visitation to the children’s grandparents. The Court operates under the assumption that a fit parent will always act in the best interests of the child. Because of this, a parent’s right to raise a child cannot be infringed upon unless it is necessary to advance a compelling interest set forth by the government. In other words, the government must have a VERY good reason to interfere with how a parent wishes to raise his or her child, and included within thosee rights is the right to decide who visits and spends time with that child.
What is the Law in New York State?
Grandparent visitation rights on Long Island are governed by New York’s Domestic Relations Law §72. Under this statute, a grandparent has standing to seek a court order to compel visitation rights to his or her infant grandchildren in two limited instances:
- When one or both parents are deceased.
- When equity favors a grandparent’s intervention. If both parents are alive and the fitness of the parent has not been called into question, a grandparent can only petition for visitation rights in instances where equity would favor his or her intervention.
Decisions Made on a Case-by-Case Basis
However, the fact that a grandparent can provide facts supporting one of the above two conditions does not end the court’s inquiry. From here, each decision will be made on a case-by-case basis, with the court taking into consideration the best interests of the child. Included in this analysis are whether visitations would force a custodial parent to accept grandparents from out-of-town, the amount of time grandparents spent with the children pre-divorce, if they ever babysat, the state of the relationship between the parent and the grandparents, and most importantly, whether or not the children want to see their grandparents and the relationship between the two. Clearly, this statute is very limiting, and grandparents cannot be awarded visitation rights solely on the grounds that they miss their grandchildren.
How Can I Avoid a Situation Such as This?
Your best option to avoid a situation in which grandparents are denied access to their grandchildren is to discuss the situation with your partner, provided that you currently maintain a relationship that allows you to discuss matters civilly. If you can, sit down, with or without your divorce attorney, and explain how grandparent visitation will affect your children. Although the right itself is deemed a “grandparent visitation right,” it is important to discuss grandparent visitation in terms of the rights of the children and not the grandparents. This way, it will be easier for your partner to see the consequences from the eyes of their children, rather than a third party to whom they may currently harbor negative feelings. If you and your partner cannot come to an agreement on your own, you may consider bringing the issue in front of a divorce mediator. This can be a mid-level step between discussing the issue between yourselves, and having the grandparents petition the court. And as always, keep in mind that a grandparent’s visitation rights are about the children – this is one constant that will benefit your children during a time of change.
Questions About Child Custody and Visitation on Long Island?
To learn more about what you need to know about Child Custody on Long Island, visit this page on Child Custody or contact us at 631-923-1910 for a complimentary consultation.
Have Questions About Grandparent’s Rights in Your Long Island Divorce?
The divorce attorneys and divorce mediators at the law firm of Robert E. Hornberger, Esq., P.C. have helped hundreds of divorcing couples on Long Island protect the rights of the children’s grandparents. Give us a call at 631-923-1910 to set up a convenient time to come in and sit down with one of our experienced divorce attorneys and mediators to discuss the particulars of your situation at a free consultation in our convenient Melville, NY offices.