Muldoon, Getz & Reston

Welcome to the law firm of Muldoon, Getz & Reston - Serving Rochester since 2003

Grandparent Custody and Visitation
by Gary Muldoon
Muldoon & Getz
Rochester, New York
www.muldoongetz.com

A parent has the right to raise a child. This is a constitutional right. The state cannot take away a child from a parent unless there are serious reasons.

Extraordinary circumstances standard
The New York Court of Appeals in Bennett v Jeffreys, 40 NY2d 543 (1976), noted the "extraordinary circumstances" under which a parent can lose custody of a child. These include: " . . . surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time." As with other custody cases, a proceeding brought by a nonparent against a parent can be filed in Family Court.


When and if a court determines that extraordinary circumstances exist, the "best interest of the child" standard is then applied. The best interest of the child is considered superior to the right of parental custody and it is this test that determines custody.

Where a parent voluntarily surrenders a child to nonparents, and consents to custody or guardianship orders for a prolonged period, the extraordinary circumstances test may be met. Charles C. v Barbara M., 254 AD2d 778 (4th Dept 1998). See also, Miller v Michalski, 11 AD3d 1029 (4th Dept 2004) (father had low IQ and was unable to care for child, child had long attachment to relative).

Example: The mother left a child with the daycare provider, who thereafter obtained a custody order. The mother brought a custody proceeding about five years later. The appeals court held that the nonparent met her burden of establishing extraordinary circumstances and therefore a hearing on best interests was required. Ruggieri v Bryan, 23 AD3d 991 (4th Dept 2005).

A total stranger, unrelated by blood, may lack standing to petition for custody, unless the Bennett v Jeffreys factors are shown. See In re Doe, 4 Misc 3d 693 (Fam Ct 2004).


Where a court has previously awarded custody based on extraordinary circumstances, the parental preference no longer exists and a later modification may be made on the basis of change of circumstances and best interests. Guinta v Doxtator, 20 AD3d 47 (4th Dept 2005).

A judicial determination of extraordinary circumstances is required to reach the issue of best interests, despite the existence of a prior custody order. Ruggieri v Bryan, 23 AD3d 991 (4th Dept 2005). Where the prior order with the parent giving up custody was made on consent, a hearing on extraordinary circumstances was required. Silverman v Wagschal, 35 AD3d 747 (2d Dept 2006).

Grandparent rights
A grandparent, in limited circumstances, can bring a proceeding for visitation. Domestic Relations Law § 72.


A great-grandparent does not come within DRL § 72 and must demonstrate extraordinary circumstances for custody / visitation. B.G. v K.B., 12 Misc 3d 332 (Fam Ct 2006); see also, Fondanarosa v Grimm, 58 AD3d 840 (2d Dept 2009).

As in custody cases involving a nonparent, if the parents are alive, a grandparent can only petition for visitation if he or she can show that "extraordinary circumstances" exist. Emanuel S. v Joseph E., 78 NY2d 178 (1991).

The "best interest of the child" standard is applied to determine if the grandparent will be allowed visitation. LoPresti v LoPresti, 40 NY2d 522 (1976); Johansen v Lamphear, 95 AD2d 973 (3rd Dept 1983). Where significant animosity exists between parents and grandparents, it may be in the best interest of the child to end grandparents' visitation. Wilson v McGlinchey, 2 NY3d 375 (2004). Similarly, where a grandfather had no existing relationship with the child and there was deep animosity between the grandfather and daughter-in-law, visitation was properly denied. Follum v Follum, 20 AD3d 886 (4th Dept 2005).

Where a parent’s rights are terminated, the right of a grand parent to seek visitation ends as well. Mu’min v Mitchell, 19 AD3d 1116 (4th Dept 2005).

The constitutionality of DRL § 72 was upheld in Morgan v Grzesik, 287 AD2d 150 (4th Dept 2001). See also, Rachel S. v Annette R., 1 Misc3d 760 (Fam Ct 2003). The United States Supreme Court found a somewhat similar statute from Washington State, which provided for grandparent visitation, to be unconstitutional because it violated the parent's due process rights. Troxel v Granville, 530 US 57 (2000).

An award of attorney fees against a grandparent was held to be unauthorized in Follum v Follum, 302 AD2d 861 (4th Dept 2003).

A nonbiological parent, such as a stepparent or non-adoptive parent, has no standing to seek visitation rights. In Alison D. v Virginia M., 77 NY2d 651 (1991), a lesbian couple that had raised a child broke up. The woman who was not the biological mother, Alison D., sued for visitation. The Court of Appeals held that she was not a "parent" within the meaning of DRL § 70. See also, Speed v Robins, 288 AD2d 479 (2d Dept 2001).

More recently, the doctrine of "equitable estoppel" has been invoked where a long-term parental relationship has existed and the nonparent is seeking visitation. See, e.g., Jean Maby H. v Joseph H., 246 AD2d 282 (2d Dept 1998). In this divorce case, in which the stepfather sought custody, the appellate court held that the stepfather had established a prima facie basis for invoking equitable estoppel. That is, the biological parent cannot raise the other person's lack of standing to seek visitation. But see, Matter of J.C. v C.T., 184 Misc2d 935 (Fam Ct 2000), reversed by Matter of Janis C. v Christine T., 294 AD2d 496 (2002); Multari v Sorrell, 287 AD2d 764 (3d Dept 2001) (any extension of visitation rights to a same-sex domestic partner must come from the State Legislature or the Court of Appeals).

To establish standing, the nonbiological or nonadoptive parent must demonstrate that the other parent's actions or encouragement created a parental bond, that the nonadoptive parent has assumed the full panoply of parental obligations, and that the child is psychologically bonded or dependent on that person as a parent.

A court may grant joint custody to a parent and a grandparent. See Amanda B. v Anthony B., 13 AD3d 1126 (4th Dept 2004).

Where a grandparent sues a parent for custody, extraordinary circumstances must be shown. Robert G v Peter I, 43 AD3d 1162 (2d Dept 2007).

© 2011 Muldoon and Getz