Parents are unmarried, father is not listed on birth certificate. When child is 15 months old, mother loses custody of child and maternal grandparents are granted Kinship Legal Guardianship. DNA testing is done and biological father relinquishes his parental rights. When child is 6 years old, bio father dies. Several months later paternal grandfather and wife who deny knowing child existed make contact and want to visit child. After initial meeting, they want a weekend visit at their New York home. Child visits their home 4 times, then they want child every weekend, but not granted that priviledge so they make daily phone calls, and when their calls are not returned they become hostile and threaten legal action. Do they have a leg to stand on?
Divorce / Separation Lawyer
A grandparent or any sibling of a child residing in this state may apply to the court for an order of visitation. The applicant will have the burden of proving by a preponderance of the evidence that the granting of visitation is in the best interests of the child. The former requirement that parents be divorced, deceased or separated as a condition for an application for visitation by grandparents was eliminated by the 1993 revision of the statute. If the applicant has been a full-time caretaker for the child in the past, that will be prima facie evidence that visitation is in the child's best interest. The claim that the statute is unconstitutional was rejected by the court.
Where grandparents or siblings apply for visitation, the court must consider the following factors:
The relationship between the child and the applicant;
The relationship between each of the child's parents or the person with whom the child is residing and the applicant;
The time that has elapsed since the child last had contact with the applicant;
The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;
If the parents are divorced or separated, the time sharing arrangement that exists between the parents with regard to the child;
The good faith of the applicant in filing the application;
Any history of physical, emotional or sexual abuse or neglect by the applicant; and
Any other factor relevant to the best interests of the child.
The constitutionality of the grandparent visitation statute, when applied to an intact family, was upheld over the claim that it violated the Fourteenth Amendment right of parents to raise their children as they see fit.
Where a child resided with the maternal grandmother and her mother for 12 years until the death of the mother, after which the father assumed custody and remarried, the court granted visitation to the maternal grandmother over the objections of the father and his second wife, who had adopted the child.
Where the paternal grandparents sought visitation independent from that of their son, who was exercising his visitation rights, the grandparents' application was denied because the court found that such independent visitation would be too intrusive and not in the best interests of the child.
In a case in which the noncustodial father was not able to exercise his visitation rights because he lived in California and the paternal grandparents, who lived in New Jersey, sought visitation with their grandchild, the court granted visitation to them as being in the best interests of the child. The court also held that this right was not derivative of the visitation right of the noncustodial parent.
Despite the hostility of the custodial father towards the maternal grandparents, the court granted them limited visitation with the grandchildren, who had a loving relationship with them. In this case the mother was institutionalized for mental illness.
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Aniello D. Cerreto, Esq.