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What Are Grandparent, Relative, and Non-Parent Rights to Guardianship, Custody, and Visitation in New York?

When a relationship ends, it’s common for grandparents and other relatives to fear how the split will affect their time with the child. Divorce, separation, or the death of a parent can be life-changing and may affect the relationship of a child with grandparents and other family members, especially when a custodial parent attempts to limit time spent together.
New York law gives grandparents the legal right to request visitation. Unfortunately, New York courts typically do not grant visitation to other extended family members, no matter how close of an existing relationship.
Visitation Rights for Grandparents
New York is one of just a handful of states that allow grandparents and non-parents to petition for visitation. New York law does grant grandparents a limited right to visit with grandchildren, but above all else, the law recognizes that parents have the right to raise children as they wish. New York courts typically only grant visitation to a child’s grandparents if it would be in the child’s best interests.
In general, New York courts generally only consider visitation requests from grandparents when they feel intervention is necessary and proper. This is usually the case when:

  • The grandparent has a substantial existing relationship with the child
  • One or both parents has died
  • The parents have interfered with efforts to maintain or establish a relationship

To determine if visitation with a grandparent is in the child’s best interest, the court may consider many factors like:

  • The motivation of the parents who are limited visitation with the grandparent. The court may consider whether a parent is doing so out of spite, for example, or with good reason.
  • The child’s physical and emotional needs.
  • The child’s wishes. A court may consider whether the child wants to see their grandparents.
  • The parent’s morality.
  • The past behavior and conduct of the parent.
  • The home environment.

The court will also determine if there is already a strong relationship between the child and the grandparents. The court may find there is a relationship if the parents are attempting to prevent contact but the grandparent is making an effort. The court is also likely to find a relationship exists if there was ever a time during which the grandparents had custody of the child before custody was restored to the parents.
Visitation for Other Family Members
New York courts have upheld that siblings and step-siblings may also petition for visitation in the same way as grandparents. In general, courts in New York will not grant visitation orders to other extended family members, regardless of how close of a relationship with a child. This includes cousins, aunts, uncles, and step-parents. Some New York courts have allowed aunts and uncles to receive visitation, but this is always done with the best interests of the child in mind. New York courts are very hesitant to consider visitation requests from family members other than grandparents and siblings as it can interfere with the rights of the parents to raise their children as they decide and determine who they can form a relationship with.
How to Petition the Court for Visitation
Non-parents can file a petition with the court seeking visitation just as a parent would do. This formal written request must be filed with the court in the county in which the child lives. The petition will describe a proposed schedule for court-ordered visitation. After filing the petition, notice must be given to the child’s parents and anyone else who may have filed for child custody.
Once the petition has been filed, a hearing will be scheduled. In court, the grandparent has the burden of proof to show they have a legal right to court-ordered time with the child and that visitation is in the child’s best interest.
Establishing legal grounds for visitation is the easiest part. If a parent has died, the determination is automatic. If the parents are living, the grandparent must prove an existing relationship with the child or show that the child’s parent or parents have taken steps to prevent a relationship from being established. The judge will give special weight to the parent’s preferences as to who gets visitation with their child. The parent’s objections will be balanced against other factors like the structure of the family and the extent of the relationship with grandparents.
After establishing legal grounds, the court must determine if visitation is in the child’s best interests. The court will assign a lawyer to represent the child’s interests. This attorney will have special training to speak in the child’s best interests or speak on the child’s behalf.

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