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Do grandparents have a right to visitation in New York?

New York State Domestic Relations Law section 72 allows grandparents to obtain visitation of their grandchildren provided that it is in the best interest of the child.

Domestic Relations Law section 72(1) provides that:

“[w]here either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent or the grandparents of such child may apply to [the supreme or the family court] . . . and the court by order, after due notice to the parent, or any other person, or party having the care, custody, and control of such child, to be given in such manner as the court prescribe, may make such direction as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.”

In the Matter of ES v PD, 8 NY3d 150 (2007), the New York State Court of Appeal held that Domestic Relations Law section 72 allowing grandparent visitation was constitutional.

In ES v ED, the maternal grandmother brought an action seeking visitation with her grandson. The father of the child objected to the visitation in light of the United States Supreme Court decision in Troxel v Granville, 530 US 57 (2000).  In Troxel, the paternal grandparent sought visitation with their deceased son's daughter.  A Washington state statute provided that “any one person” may petition the court “at any time” for visitation as long as it serves the child's best interest.  The Supreme determined that the Washington statute was constitutionally defective because it allowed “anyone” at “anytime” to petition the state court for visitation as long as it best serves the child.

The facts of Matter of ES v PD, 8 NY3d 150 is briefly summarized as follows: the mother of the child was sick with cancer and the grandmother moved into the marital residence to care for the mother and the child.  After the mother dies the grandmother continues to care for the child.  A dispute later developed between the grandmother and the father because the father thought that the grandmother was sabotaging his authority.

The court noted that section 72 has a two-step approach to grandparent's visitation. “First, [the court] must find standing based on death or equitable circumstances”; and “[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild”.  See ES v ED, citing Matter of Emanuel S., 78 NY2d 178, 181(1991).

New York Domestic Relations Law section 72 does not give the grandparent an absolute or automatic right of visitation.  It merely grants the grandparents standing to seek visitation.  It provided a mechanism for the grandparent to seek visitation.  The court found that the grandmother in ES v Ed had a long-standing relationship with the child.  And visitation with the grandmother would be in the child's best interest.

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