My name is Paul W. Matthews. I am an experienced Staten ISland family law attorney.
When Do Grandparents Get Custody?
When a case involves a contest between a grandparent and one or more parents, under New York Law, the grandparent has the burden of proof, and must show two things:
- First the non parent must prove something called “exceptional circumstances”.
- Assuming that the non parent can prove exceptional circumstances, he or she must also prove that granting him or her custody would be in the child or childrens’ best interests.
What are exceptional circumstances?
When a case involves a contest between a grandparent and one or more parents, under New York Law, the grandparent has the burden of proof, and must show two things:
Table of Contents show 1 What are exceptional circumstances? 2 The “Grandparent Statute” 3 What About Visitation Rights? 3.1 How Much Visitation Time Does A Grandparent Get?
When a case involves a contest between a grandparent and one or more parents, under New York Law, the grandparent has the burden of proof, and must show two things: a kinship that has established itself as deeply significant in the child’s life and exceptional circumstances. These scenarios often revolve around the complex issues of child custody and the grandparents rights associated with it. Effective representation by legal counsel during this process can make a significant difference in achieving a favorable resolution.
Table of Contents show 1 What are exceptional circumstances? 2 The “Grandparent Statute” 3 What About Visitation Rights? 3.1 How Much Visitation Time Does A Grandparent Get?
In the case of Bennett V Jeffries, New York’s highest court, the Court of Appeals, ruled that for a non-parent to get custody over a parent, it is necessary that the non-parent prove that the parent had either abandoned the child, had persistently neglected the child, or that there were “similar exceptional circumstances.” This takes into account the pivotal kinship that might have developed between the child and the non-parent, highlighting the crucial role that appropriate legal services can play in navigating complex child custody cases involving grandparents rights.
The “Grandparent Statute”
Subsequent cases have clarified what is meant by “similar exceptional circumstances,” but it is a somewhat elastic term, which can be fact-specific. That being said, some courts have found that just a long separation between the child and the parent can be sufficient if the child or children have developed a strong emotional bond with the non-parent, making this bond appear as a seemingly permanent aspect of the child’s life.
All of that being said, findings of neglect against the custodial parent will usually be enough to be considered exceptional circumstances. It is a very good idea to specify the extraordinary circumstances and the kinship formed in the grandparent’s custody petition. Such detail can significantly impact the outcome of child custody determinations, especially when grandparents rights are being asserted.
In 2004, the New York Legislature made several amendments to the Domestic Relations Law (“DRL”) which pertained to the rights of grandparents to get custody and visitation with their grandchildren. As to custody, the “new” statute states that a voluntary relinquishment of care and custody by a parent to a grandparent that lasts 24 continuous months is per se an exceptional circumstance. This period allows a kinship to potentially solidify into what feels like a more permanent arrangement. The statute makes it clear that the amendments do not infringe on the rights of grandparents who are able to prove exceptional circumstances in different ways.
What About Visitation Rights?
The statute must be read very closely to understand its limitations. First, the parent’s relinquishment must be voluntary. If a parent is incarcerated this would not be voluntary. Also, if a court issues a temporary order of custody to a non-parent, over the parent’s objection, that would not be voluntary either.
Furthermore, if a parent allows a child to reside with a grandparent but still visits regularly and is very involved in making decisions as to the child’s welfare, goes to all doctor visits, goes to the school, etc., this will not be considered a relinquishment of care and custody, even if the child lives with the grandparent for over 24 months. This distinction is important in understanding how child custody and grandparents rights interact and are applied in legal contexts.Comprehensive legal representation can help clarify these intricacies and guide the family towards a successful resolution, ensuring that all parties understand their rights and obligations regarding custody and visitation services. Effective communication is essential in these processes, especially when addressing grandparent rights. It indicates the kinship is not intended to become permanent or diminish the parent’s role significantly, but sometimes assistance may be required to navigate these sensitive family issues through proper negotiation and legal channels.
- The first way is if one of the parents is deceased. This is called “automatic standing’.
- The second way is that the grandparent has to either prove that he has had a close relationship with the child or children, or the grandparent made serious attempts to establish such a relationship, but was thwarted by actions of the parent. Other factors are also taken into account, for example if the grandparent created problems in the home by “meddling” in the affairs of the parent or parents.
Around about the same time that the Legislature was contemplating changing the DRL, there was an important US Supreme Court case that emphasized the rights of parents to choose with whom they wished their children to associate. In order to avoid running afoul of this Supreme Court case, New York made changes to the rights of grandparents to get visitations with a grandchild. The current requirements are firm in ensuring a balance between respect for parental rights and the well-being of the child, while also promoting open communication among family members to facilitate understanding and agreement.
First, the grandparent has to prove that he or she has “standing.” There are two ways to get standing.
How Much Visitation Time Does A Grandparent Get?
If the grandparent has shown standing, he or she must also show that the visitation is in the child’s best interests, respecting and balancing the kinship dynamics through communication and understanding.
Serving All Staten Island Neighborhoods
I represent parents and families across Staten Island, including Grasmere, Clifton, Stapleton, St. George, Tompkinsville, Dongan Hills, South Beach, Midland Beach, New Dorp, Oakwood, Great Kills, Eltingville, Annadale, Arden Heights, Huguenot, Prince’s Bay, and Tottenville. All Staten Island Family Court cases are heard at 18 Richmond Terrace, Staten Island, NY 10301.
About Paul W. Matthews, Esq.
Paul W. Matthews is an experienced Staten Island family law attorney with more than 25 years of trial experience in New York Family Courts. He has handled hundreds of cases involving child custody, visitation, paternity, child support, and Family Court orders of protection.
He represents clients throughout Staten Island from his office near Grasmere and also maintains a Manhattan office at 90 Broad Street in the Financial District for parents with matters in Manhattan or Brooklyn Family Court.
Paul personally answers his own phone and provides direct, individualized representation in every case. His practice emphasizes clear communication, practical strategy, and strong advocacy in custody, visitation, support, and parentage cases in the Staten Island Family Court at 18 Richmond Terrace.
Call Paul directly: (347) 461-0760