As a first-generation American, born just a year and a half following my parent’s immigration from Russia to the United States, my parents had to work around the clock to support my brother and me. Given this, I spent most of my childhood with my grandparents. In fact, I credit much of who I am today to them sharing in my upbringing. As I visit my parents in Michigan, where I grew up, with my two sons during their mid-winter break I am reminded of the special bond between grandparents and grandchildren. In fact, I think this special bond between my grandparents and me and now my children’s bond with their grandparents has made me extremely sensitive to the rights of elders in general. I consider my children and I extremely lucky to have the gift of grandparents in our lives and the opportunity to form such a special relationship.
Therefore, it pains me when in the midst of a family breakup or divorce the children are kept from their grandparents. In certain circumstances, of course, there may be a good reason to keep grandparents away from grandchildren for safety reasons. However, those situations are not what I am referring to in this article. This article focuses on those circumstances when the parents are separating and because the parents are angry at each other or at their spouse’s parents they keep the children from seeing their grandparents. Children often end up losing out on a rare and extremely special bond, wisdom based on age and life experience, and the kind of care and love that forms great confidence in children moving forward.
For this reason, even though many family law attorneys avoid taking on grandparent visitation cases because of their difficulty level, I take it upon myself to represent many grandparents in both New York and New Jersey in fighting for their right to preserve and build a meaningful relationship with their grandchildren. I say it is a difficult process because grandparent rights in the family law field are limited. I will break it down by the state – First New York, then New Jersey.
Grandparent Rights in New York
In New York, grandparents have the absolute right to petition the Family Court for visitation with their grandchildren. Once grandparents file the Petition in the county where they live in or where the child resides, they must serve both parents with their Petition. Thereafter, there is a two-step process for obtaining visitation. First, the grandparents must prove exceptional circumstances. To show exceptional circumstances typically the grandparents would have to prove an ongoing relationship with the child. In most cases in New York, an attorney will be appointed to represent the child. If the child is old enough the child’s attorney will report to the Court on whether the child substantiates an ongoing relationship. However, this is not enough. The grandparents will have to go through an actual hearing before the Court to prove that exceptional circumstances exist giving them the right to request visitation with their grandchildren.
If the grandparents in New York are successful at proving they have the right to proceed, the court will then start the second part of the process of determining if the grandparents should have visitation with their grandchild or not. The burden of proof is on the grandparents to prove that it is in the best interest of the child to spend time with their grandparent. The court will take into consideration the opinion of the parents as it is presumed that parents know best what is in the best interest of their child. The child’s age, maturity level, and wishes will also be taken into consideration. If the parents and grandparent cannot agree on a visitation schedule, the court will hold another hearing (a trial) where both sides can call witnesses and bring evidence to allow the Judge to make the decision.
In New York, adoption does not cut off a grandparent’s right to request visitation with their grandchild, but as adoption often happens when the child is a baby it is very difficult at times to prove an ongoing relationship with the child warranting grandparent visitation. At the end of the day, the primary concern for the court is the best interest of the child, the child’s health, safety, and welfare. Therefore the Judge will take into account whether your petition was made before or after adoption and the preferences of the adoptive parents.
Is it worth the expense to file for visitation with your grandchild in New York? Based upon my 15 years of experience in litigating such matters and having represented many grandparents in their battle to maintain a relationship with their grandchild, I would say of course. If you have had a meaningful relationship with your grandchild I would encourage any grandparent being kept from continuing this special relationship to fight for their rights to your grandchildren and not be cut off from such a special gift.
What about custody of a grandchild in New York? Custody is a very different request from merely requesting visitation. If you can prove that your grandchild’s safety and welfare are in danger, such as if they are being abused or neglected then there is a possibility of obtaining custody of the child. However, this is extremely difficult and would most likely not be a permanent situation, but only as long as the parent needs to get back on their feet or rehabilitated. Again, the court would have to determine that it is in the best interest of the child to have custody given to the grandparents which you would no doubt have to consult with an experienced attorney about before taking any action.
Grandparent Rights in New Jersey
In New Jersey, grandparents have rights to petition the court for visitation. While New Jersey does not have a two-part process like in New York, as in New York the court must determine whether it is in the best interest of the child to award the grandparent visitation with their grandchild. The court will consider eight factors, such as the relationship between the child and the grandparent, the relationship between the parents and grandparent, where the child is residing, where the grandparent resides, the time that has passed since the grandparent and grandchild have seen each other, whether the parents are divorced and the time-sharing arrangement between the child’s parents, etc.
The process may seem easier in New Jersey than in New York, but having to prove that it is in the best interest of the grandchildren to have visitation with you, the grandparent, over the objection of the parents is still a heavy burden to carry. In New Jersey, the parents are presumed to know what is best for their children and the courts often do not want to second guess their opinion or decisions for their children.
Whether you are a grandparent in New York or New Jersey, in most circumstances by the time you file for grandparent visitation it has been months or years since you have seen your grandchildren. You have probably been through a lot of back and forth with the parents and have been trying your best to see your grandchildren without having to seek court intervention. We always suggest the family try to work out their issues outside of court for best results in the realm of grandparent rights, but allowing much time to pass without seeing your grandchildren can really hinder your rights. In both New York and New Jersey the court puts much weight into the ongoing relationship between the grandchild and the grandparents and if too much time has passed without seeing each other such a close relationship could be hard to prove. If grandparents wish to stay out of court but preserve their rights then an alternative to filing in court might be to try mediation or some other settlement process. This at least shows the court, if it is necessary to eventually go that route, that you have been fighting to see your grandchild rather than simply sitting on your rights to do so.
I am extremely passionate about fighting to preserve and maintain the relationship between grandparents and their grandchildren. If you require advice or assistance call HD Family Law so Helen M. Dukhan can help you enforce your right to be grandparents and your grandchild’s right to enjoy the gift of your love.