At common law, grandparents had no standing to assert rights of visitation against a custodial parent. In 1966 the New York State Legislature enacted Domestic Relations Law §72 giving grandparents standing to seek visitation rights when the grandparents' child had died. DRL §72 was amended in 1975 to allow grandparents standing to seek visitation when they can establish circumstances in which equity would see fit for the court to intervene. The Legislature and Courts recognize that visits with grandparents provide benefits to grandchildren that cannot be derived from any other relationship.
A court will consider the status of the family, the nature and basis of the parent's objection to the visitation, and the nature and extent of the grandparent-grandchild relationship. The grandparents must establish a sufficient existing relationship with the grandchild, or in cases where that has been frustrated by the parent(s), grandparents must establish that they have engaged in sufficient efforts to establish a relationship. The sufficiency of the grandparents' efforts are measured against what they could have reasonably done under the circumstances. Examples might be multiple attempts to contact or visit the grandchild once visitation has been frustrated or taking any opportunity provided by the parent, however limited, to visit or engage with the grandchild.
In addition to standing, grandparents seeking visitation with a grandchild must also establish that the visitation is in the best interests of the grandchild. This determination requires a court to evaluate a variety of factors including the nature and extent of the existing grandparent-grandchild relationship, the basis and reasonableness of the parent's objections, the grandparents' nurturing skills and attitude toward the parent(s), the attorney for the child's assessment, and the child's wishes.
A court will not lightly find against a fit parent's wishes and there is a strong presumption that a fit parent is acting in the child's best interests. Nevertheless, animosity between the parents and grandparents is not on its own sufficient to support denying visitation to grandparents.
The Law Office can assist in matters involving grandparent visitation. Call (518) 269-2012 or send an inquiry through the Contact page.
Custody is the supervisory right of a parent to care for a child (a child is a person who has not reached the age of majority (age 18)). In the absence of a court order determining custody, both parents have equal rights to the legal and physical custody of a child. Legal custody is the right to make important decisions about a child, such as medical care, religious upbringing, and education. Physical custody, also sometimes known as “residential custody”, concerns the actual physical care and supervision of a child.
When a parent has sole legal custody, that parent has a right to make major decisions for the child without the agreement of the other parent. A parent with sole physical custody resides with the child more than fifty percent (50%) of the child’s time and is the custodial parent. When a parent has sole physical custody, the other parent is provided visitation.
When the parents have joint legal custody, then they must make major decisions about the child together. Parents with joint physical custody each live with the child for an equal amount of time.
Initial Determination of Custody and Visitation
A Family Court’s initial determination of custody is based on the best interests of the child. The court weighs a variety of factors in order to determine a child’s best interests, including:
A child’s wishes are not determinative, but are considered in determining whether the custodial arrangement is best suited to his or her interests. The court considers the age and maturity of the child and whether or not influence has been exerted. Parents who exhibit alienation behavior toward the other parent and exert influence on the child’s preferences will lead a court to give very little weight to the child’s expressed wishes.
The Law Office can help address questions and concerns specific to your custody and visitation issues, Contact us today.
A child born to married parents is presumptively the child of the husband. For a child born outside of marriage, an Acknowledgment of Paternity executed pursuant to Social Services Law §111-k and Public Health Law §4135-b establishes paternity.
A father’s name on a birth certificate of a child whose parents are not wed is insufficient to legally establish paternity. Parents completing birth certificate paperwork at the time of a child’s birth should ask the hospital to provide the Acknowledgment of Paternity form. This form is then signed by the father, under witness, and filed with the birth certificate.An Acknowledgment of Paternity is filed with the birth certificate or, if filed separately, with the same registrar where the birth certificate is filed. If the Acknowledgment is unchallenged, then no further action is required and paternity is legally established for the child. Family Court Act (FCA) §516-a(a).
Challenges to paternity are made by petition to Family Court and involve a number of threshold issues, including whether the Acknowledgment of Paternity was made under fraud, duress, or mistake, and whether determining paternity is in the child's best interest. For an overview of paternity and challenges in Family Court, see our blog, https://veronicareed2.tumblr.com/post/148693206649/am-i-the-dad-paternity-support-and-family-court
A child's wishes are not determinative when a court is considering custody and visitation, but do go to the issue of an arrangement best suited to meeting that child's interests. In weighing a child's expressed preference for custody and visitation, the Family Court judge will consider the age and maturity of the child and whether or not influence has been exerted by a parent.
We are Attorneys for Children (AFC) in Schenectady County and Schoharie County, appointed during Family Court proceedings as the child's advocate and counsel. We are also 18-B Assigned Counsel attorneys in Schenectady County and Schoharie County, appointed to represent adults in Family Court matters involving custody and visitation, neglect and abuse, and termination of parental rights and in Criminal Court matters. For information about our juvenile offender and PINS representation for children, click here. For information on adoptions, click here. Please Contact the law office for a consult or more information.