Divorce is common today even among older adults, so it is not unusual for families to have various “step” relations. These relationships can be as meaningful as those of blood relatives, but divorce law does not always treat them that way. One example is step-grandparents. Unfortunately, New York law is behind the times in recognizing the benefits of allowing the children of divorced parents to continue their relationship with various extended family members. The question is when that might change.
Parents have a fundamental right to decide the care of their children. However, courts can intervene where it would be in the best interests of the child. Generally, parents are free to choose who can visit with their children. While married couples make those decisions together, where parents divorce, it is not unusual for a custodial parent to try to restrict interactions between children and the parents of the noncustodial parent. In response to this situation, grandparents increasingly began to fight for the right to petition a court for visitation. This is now allowed but only in limited circumstances.
As discussed in a prior post, grandparents do not have automatic rights to visitation in New York, but they may be granted visitation if they meet the legal requirements. Grandparents can petition a court for visitation where at least one of the child’s parents is deceased, or certain conditions exist allowing a court to intervene in equity. These conditions require showing the grandparents had an existing prior relationship with their grandchild or that the child’s parent(s) have prevented them from establishing a prior relationship. In addition, it must be in the best interests of the child to allow visitation. Notably, New York only allows biological or adoptive grandparents to petition for visitation. Step-grandparents and other extended family members are not eligible even if they have a close relationship with the children and it would be in their best interests to continue that bond. This makes no sense from a societal or familial perspective.
The prevalence of divorce and second marriages today means that much of the public has a wider notion of who is “family” than the courts do. While the courts recognize that divorce disrupts children’s lives and encourages parents to minimize those disruptions, they will not intervene to help preserve extended family relationships that would be in the best interest of the children.
There was a time when grandparents did not have the right to petition for visitation, but time changed that point of view. We believe step-grandparents and other relatives will eventually gain that right as well where it can be shown that there was a substantial relationship with the child.
If you have questions regarding custody, visitation or other family law or divorce issues, please contact us.
