New York Grandparent Custody Frequently Asked Questions

Grandparents are not automatically entitled to custody. Courts prefer for children to stay with their parents, if possible. There are circumstances in which a grandparent would have standing to petition for custody. Such circumstances must be so extraordinary that the parents’ fundamental to right to custody of their children is overcome.

Normally, custody issues arise when a couple divorces, and a court must determine which of the parents should have custody or whether the court should grant joint custody. Parental rights are presumed, and for a New York court to grant custody to someone other than the parents, circumstances must be extreme; it must be clearly in the best interests of the child to remove the child from parental custody. But even if the court does grant custody to someone other than the parents, it will not necessarily be the grandparents.

One of the following must be proven for a parent to lose custody:

• Unfit parents. A common reason a court might rule a parent to be unfit is drug or alcohol abuse. Normally, if one parent is unfit, the court will give child custody to the other parent. But if both parents are unfit, the court will remove the child from their custody.
• Child abandonment. If the parents just left the child alone or with a caretaker with no communication for an extended period of time, the child was abandoned.
• Voluntary surrender. The parents have voluntarily surrendered the child to a third party such as the grandparents to raise.
• Neglect or abuse. If the parents are neglecting or abusing the child, the judge will remove the child from parental custody.
• Extended disruption of custody. If the parents left the child with the grandparents or other person for an extended period of time, the court may find it in the best interests of the child to remove the child from parental custody.

If your attorney can meet the burden of proof of showing the parents should not have custody of their own child, the court will then determine whether it is in the best interests of the child for you to have grandparent custody. You may call witnesses and put other types of documents into evidence such as health records. The best interests of the child are paramount. The judge will look at a number of factors in reaching a decision including your age, health and mental stability. If you have a strong relationship with the child, that counts in your favor. You are also more likely to be granted custody if the child is already living with you.

If you are granted grandparent custody, it may only be temporary. A New York court may change custody and visitation over time as circumstances change. If the parents can get their lives on track, there is a strong presumption for parental custody, and custody may be returned to the parents. Of course, should the parents lose parental rights irrevocably, then it may be possible for you to adopt the child.

There is a presumption for the parents’ decision about whether or not grandparents should be allowed to visit, but it may be possible to overcome that presumption.

In New York, grandparents have a legal right to request court-ordered visitation when:

• One or both parents die
• The grandparents have a substantial existing relationship with their grandchildren, or
• The child’s parents have interfered with their efforts to establish or maintain a relationship.

Grandparents are not automatically entitled to visitation, but the law varies from state to state. Generally speaking, while state laws do allow grandparent visitation under specific circumstances, they do not favor grandparent visitation when the child’s family is intact. Further, courts tend to respect the custodial parent’s ability to make decisions that are in the best interests of the child. This means that where the custodial parent decides that a grandparent should not be allowed to see a child, courts tend to respect the decision of the custodial parent.

Because grandparent rights are very limited, a grandparent would not be able to prevent a grandchild from being adopted. In addition, because upon adoption the grandparent’s rights are terminated just at the parents’ rights are, the grandparents generally would not have the right to seek visitation with a grandchild who was adopted out.