Grandparent & Non-Parent Rights to Child Custody and Visitation

In all of this troublesome and troubled area[,] there is a fundamental principle.  Neither law, nor policy, nor the tenets of our society would allow a child to be separated by officials of the State from its parent unless the circumstances are compelling.  Neither the lawyers nor Judges in the judicial system nor the experts in psychology or social welfare may displace the primary responsibility of child-raising that naturally and legally falls to those who conceive and bear children.  Again, this is not so much because it is their right, but because it is their responsibility.

Bennett v. Jeffreys, 356 N.E.2d 277, 285 (N.Y. 1976).  Thus, parents have both a right and responsibility to care for their own children.  Accordingly,  “under existing constitutional principles, the court and the law are powerless to supplant parents except for grievous cause or necessity. Bennett, 356 N.E.2d  at 281 (citing, Stanley v. Illinois, 405 U.S. 645, 651 (1972)).

However, [t]he day is long past in this State when the right of a parent to the custody of his or her child, where the extraordinary circumstances are present, would be enforced inexorably, contrary to the best interest of the child, on the theory solely of an absolute legal right. See, Bennett, 356 N.E.2d at  281 (N.Y. 1976).

Thus, it is well established that a nonparent has standing to seek custody rights with respect to a child in the presence of extraordinary circumstances.  These extraordinary circumstances include:

  • surrender,
  • abandonment,
  • persisting neglect,
  • unfitness,
  • unfortunate or involuntary disruption of custody over an extended period of time, or
  • other equivalent but rare extraordinary circumstances which would drastically affect the welfare of the child

Bennett, 356 N.E.2d  at 284; DRL § 72(2)(a) (grandparent standing to bring custody petition).

It is the nonparent’s burden to prove that extraordinary circumstances exist. Michael G.B. v. Angela L.B., 219 A.D.2d 289, 291 (4th Dept. 1996).

But, “…so long as the parental rights have not been forfeited by gross misconduct or other behavior evincing utter indifference and irresponsibility, the natural parent may not be supplanted . . . . For once it is found that the parent is fit, and has neither abandoned, surrendered, nor otherwise forfeited parental rights, the inquiry ends and the natural parent may not be deprived the custody of his or her child.” Adoption of L., 61 N.Y.2d at 427 (citations omitted)

Nonetheless, a loving grandparent who has been a part of a child’s life is not without recourse.  In recognition of the fact that the grandparent relationship is often a precious part of a child’s experience involving benefits to the child which the child cannot derive from any other relationship,” grandparents may still apply for visitation rights under certain circumstances. Emanuel S., 573 N.Y.S.2d 36 at 38 (N.Y. 1991).  These circumstances are where:

  • either or both of the parents of a minor child, residing within this state, is or are deceased
  • conditions exist which equity would see fit to intervene

DRL § 72(1).

If you have any questions or concerns, click the “Contact Us” link above or call (315) 422-1311.




For more information contact Attorney Joseph P. Morawski at Melvin & Melvin, PLLC