When Do Grandparents Get Custody (Article By Family Law Attorney)

Grandparent and parents in court on custody case

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?

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”.

Subsequent cases have clarified what is meant by “similar excetional 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.

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 in the grandparent’s custody petition.

The “Grandparent Statute”

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 relinquishmlent of care and custody by a parent to a grandparent that lasts 24 continuous months is per se an exceptional circumstance. 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.

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 cutody 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.

What About Visitation Rights?

Around about the asme time that the Legislature was contemplating changing the DRL, there was an important US Supreme Court case which 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:

First, the grandparent has to prove that he or she has “standing”. There are two ways to get standing.

  1. The first way is if one of the parents is deceased. This is called “automatic standing’.
  2. 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.

If the grandparent has shown standing, he or she must also show that the visitation is in the child’s best interests.

Custody and visiation cases between parents and grandparents can sometimes be very contentious and may even trigger a court’s ordering a forensic evaluation. This why you may need a family lawyer who has experience in grandparents’ right in order to give you the best chance for a positive outcome.

How Much Visitation Time Does A Grandparent Get?

While every case has different facts, in general a grandparent will not be granted as much time as a non- custodial parent. While most non-cutodial parents get alternate weekend parenting time plus time during vacations and school breaks, a typical order for a grandparent would be one overnight visit a month. However if the grandparent had already been spending a lot of time with the chidl before any court order was entered, he or she might very well get significantly more time.