NY Appeals Court Requires a Full Hearing on Grandparents’ Visitation Petition

When

the parents and grandparents of children have serious conflicts with each other, it can be a heartbreaking situation for the family and a tricky legal matter. Parents, unless they are shown to be unable to carry out their responsibilities properly, have the legal authority to determine who spends time with their sons and daughters. On the other hand, New York law requires that visitation terms be set based on what is in the best interests of the child, and most children benefit from time spent with their grandparents.

In a recent New York case, Demarco v. Severance, the grandparents sought visitation rights over the objection of the children’s parents. A Monroe County judge granted summary judgment to the parents before the grandparents could even be heard on the merits. The judge held that the acrimony between the parties and the parents’ strenuous objection to visitation meant that the case should go no further.

However, the Appellate Division, Fourth Department, reversed the summary judgment order against the grandparents and held that a full hearing should take place to decide if they should receive visitation rights based on a “best interests” evaluation. Factors to be weighed should include:

• Pre-existing relationship — If grandparents and grandchildren are already close, there is a better case to be made for visitation than if grandparents are looking to begin a relationship with the youths.
• Whether grandparents support the parent-child relationship — Judges are highly unlikely to award visitation rights if they believe the grandparents might use that time to drive a wedge between the youths and their parents. In petitioning for visitation over a parental objection, grandparents should emphasize that they will not attempt to impede the parent-child relationship.
• Animosity between parents and grandparents — Even when grandparents generally have a positive influence, animosity between them and the child’s parents might make visitation too difficult or dangerous.

Though great advances have been made in grandparents’ rights over the past couple of decades, disputes between parents and grandparents are still not decided on an even playing field. Parents are given tremendous discretion regarding the activities of their sons and daughters. Despite this, grandparents can take heart in the fact that the decision in Demarco means that at a minimum, they should be allowed to make their case for visitation on the merits.

Bryan L. Salamone & Associates, P.C. handles grandparents’ rights issues and other New York family court matters for clients across Long Island. If you are engaged in a conflict over custody or visitation, please call 1.631.479.3839 or contact us online to schedule a consultation.