Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Monday, February 26, 2007

Case Law Development: Grandparent Visitation Statute Upheld

Grandparent visitation cases seem to be taking center stage once again.  Recently, the New York Court of Appeals unanimously upheld a constitutional challenge to New York’s grandparent visitation law.    The court distinguished the New York law from the Washington law struck down Troxel v Granville, noting that the New York statute gave parents the presumption that they were acting the in their children's best interest. The Court noted that:

. . . courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one. And while ...the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. "It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement" ...

While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother. The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child's best interest for his relationship with grandmother to continue — e.g., the reasonableness of father's objections to grandmother's access to the child, her caregiving skills and attitude toward father, the law guardian's assessment, the child's wishes — before making a judgment granting visitation.

The court concluded that the New York statute "does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild."  First, the court must find standing based on death or equitable circumstances; and if 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.

Matter of E.S. v. P.D. (February 15, 2007)
Opinion from Legal Information Institute

Visitation | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference Case Law Development: Grandparent Visitation Statute Upheld:


Post a comment