GRANDPARENTS STILL HAVE RIGHTS IN NEW YORK STATE

by: Mace H. Greenfield, Esq.

The U.S. Supreme Court decision from 2000 does not have any impact on the grandparent visitation law of New York State. That case, Troxel v. Granville, involved a broad Washington State statute which permitted:

‘[a]ny person may petition the court for visitation rights at any time,’ and the courts may grant such visitation rights whenever ‘visitation may serve the best interest of the child.’ *** Once the visitation petition has been filed in court and the matter is placed before a judge, a parent’s decision that visitation would not be in the child’s best interest is accorded no deference.

In that case, the grandchildren’s surviving parent would allow visitation to the grandparents with the grandchildren, but for only one day per month. The grandparents petitioned for more time with the grandchildren, two overnight weekends per month and two weeks during the summers. The Court below ignored the fact that the parent of the children assented to visitation prior to the filing of the petition, and placed the burden on the parent to prove it would not be in the best interest of the children. The U.S. Supreme Court compared and contrasted the Washington State law to other State laws for grandparent visitation, which require the grandparent to first be denied visitation by the child’s custodian prior to being able to file such a petition, and which put the burden on the grandparent to show that it is in the child’s best interest, as does New York law. The U.S. Supreme Court, in its majority decision, criticized the Washington State’s Trial Court case as being nothing more than a simple disagreement between the judge and the parent.

Most importantly, the U.S. Supreme Court decision was a very narrow one and made clear:

Because we rest our decision on the sweeping breadth of § 26.10.160(3) and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court – – whether the Due Process Clause requires all non-parental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context. In this respect, we agree with Justice Kennedy that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best ‘elaborated with care.’ *** Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific non-parental visitation statutes violate the Due Process Clause as a per se matter.

Thus, the New York grandparent visitation statute and case law stands untouched by that decision, because it is: not over broad, as it is limited solely to biological grandparents; it is required to first show that the petitioning grandparent has standing; and only then is best interest of the child considered, and is to be put forth by the petitioning grandparent.