There is a bill pending in New York State which would have a severe impact on the legal rights of grandparents to visitation with their grandchildren.
The current statute
Under the current statute, a parent’s opposition to grandparent visitation is insufficient to sway a court against ordering that grandparents receive visitation with their grandchild, This comes as a great relief to many grandparents who have been prevented from seeing their grandchildren.
The current statute allows a grandparent or the grandparents of a child to apply to the court for visitation rights under two circumstances:
- Where either one or both parents of a minor child residing in New York State is/are deceased. The statute does not require that the deceased parent be the child of the grandparent or grandparents seeking visitation rights.
- Where “conditions exist which equity would see fit to intervene,” a standard that is extremely fact-sensitive. It is important to note that Domestic Relations Law Section 72 is limited to grandparents and does not extend to great-grandparents or other family members. Furthermore, the Court has held that a step-grandfather does not fall within the statute.
A significant modification of the proposed Bill
Bill number A07821 seeks to restrict severely the rights of grandparents by modifying Domestic Relations Law Section 72. The proposed changes support a desire to defer to the decisions of a child’s parent regarding the care and custody of that child. This deference also includes a parent’s decision to restrict a child’s contact with his/ her grandparents, thereby hindering the creation and/or maintenance of a grandparent-grandchild relationship.
Currently, the death of one of the child’s parents automatically allows a grandparent to petition the Court for visitation rights. The proposed revision would completely eliminate that automatic right and merely “consider” a death of a parent. Therefore, before enabling the Court to hear a matter of a visitation, a grandparent would be required to show that “conditions exist which equity would see fit to intervene,” language that is part of the current statute, but the grandparent would be faced with an additional hurdle: “a strong presumption exists in favor of parental decisions concerning visitation.”
This means the Court would begin its analysis with the premise that the child’s parents have the right to make decisions for their child and that their decisions should be respected. The burden is placed on the grandparent to “allege, with detail and specificity, that the child would experience significant harm to his or her health, safety, or welfare if visitation were denied.” Absent the requisite “detail and specificity,” there would be a strong likelihood that visitation would be denied. This is a very high burden to meet.
Furthermore, the grandparent must set forth in the verified petition or in a verified affidavit to be submitted to the Court with his/her petition for visitation that he/she made a “good faith attempt at reconciliation” with the parent(s) of the child. Once again, this attempted reconciliation must be alleged with specificity. Merely stating that the grandparent was prevented from seeing his or her grandchild is insufficient.
Adding to the already high burden
The grandparent also would be required to demonstrate that “he or she is a fit and proper person to have visitation rights with the child and that he or she has no reported history of domestic violence.” The Court would perform its own independent search to determine whether the grandparent was ever subject to an order of protection or has a criminal history. The proposed revisions to the statute state that the Court may direct that costs and allowances, including attorney’s fees, be paid by an unsuccessful petitioner (the grandparent), “where the court finds that the contest was brought in bad faith or was frivolous or non-meritorious.”
There is no reciprocal language proposed in the event that the grandparent emerges victorious after a legal battle in which the parent’s position was “in bad faith or was frivolous or non-meritorious.” As a result, this portion of the statute may act to deter a grandparent from litigating for visitation with his or her grandchild. Paying the legal fees of one law firm may be difficult enough without facing the risk of having to pay the legal fees of another law firm.
The differences between the language in the current statute and the proposed revisions to the statute are enormous. If the bill is passed and Domestic Relations Law Section 72 is revised, the results may be disastrous to grandparents. If the statute is revised as proposed, only time will tell how the courts will deal with the many restrictions and high burden placed on grandparents.
Associate Meredith Chesler is a member of Vishnick McGovern Milizio LLP’s Trust and Estate Administration Practice Group. She can be reached at firstname.lastname@example.org, or 516.437.4385, ext. 116.