The U.S. Constitution and the Parents' Fundamental Right to Custody

The United States Supreme Court in the case Troxel v. Granville, 530 U.S. 57, 120 S. Ct 2053, 147 L.Ed. 2d 49 (2002) firmly held that parents have a fundamental constitutional right to the care and control of their children. Therefore, in order for the state to intervene in custody and visitation matters, it must find that there is sufficient evidence to overcome the parents’ constitutional right. Even the parents’ decision as to who may have contact with their children is deemed presumptively in the children’s best interest given the parental right to their care and control.

Bennett v. Jeffreys, 40 N.Y. 2d 543, 387 N.Y.S. 2d 821, 356 N.E. 2d. 277 (1976) is the seminal case in New York decided by the highest Court, --the NY Court of Appeals-- and sets forth the kind of evidence needed by grandparents to overcome the parents’ right to custody of the children. There are several grounds or “extraordinary circumstances" that grandparents can assert to overcome the parents’ fundamental right. If grandparents can successfully assert and prove any one of the following grounds then they can achieve what is known as “standing," and the Court will proceed to determine custody based on what is in the best interests of the children. If the grandparents fail to prove at least one of these grounds then their case will be dismissed since they have not overcome the parents’ fundamental right.

The recognized grounds in New York are:

1) Parental unfitness;

2) Abandonment;

3) Surrender;

4) Persistent neglect;

5) Child abuse;

6) Psychological bonding with the child;

7) Extended disruption of custody

In grandparent visitation cases, in order to obtain standing, the grandparents must prove that one of the parents is deceased or that there are “exceptional circumstances." This standard is different than the “extraordinary circumstances" standard in nonparent custody cases. In visitation matters, grandparents need to prove that “equity deems fit to intervene" or in other words, that the grandparents have had a long, regular and loving relationship with the children, or at least that they have attempted to initiate a relationship, which has been prevented by the parents. Animosity between the parents and the grandparents alone is insufficient. The parents must prove that the grandparents are interfering with their ability to care for and control the children.

The statutory provisions for Grandparent custody and visitation are found in New York Domestic Relations Law section 72 and the Family Court Act section 651.

The Burden of Proof

Grandparents have the burden of introducing sufficient evidence in the form of testimony, documents, and expert opinion, if applicable. They must do so through a trial using the formal rules of evidence. In custody cases, the Court usually conducts only one trial were the grandparents must present evidence to prove extraordinary circumstances and the best interest of the child.

Temporary custody or visitation

Typically, the Courts do not grant temporary custody or visitation to grandparents while the case is pending because that would infringe on the parents’ fundamental right without a full and fair trial.

The role of the attorney for the children formerly known as the law guardian

In contested custody and visitation matters, the Court will usually appoint an attorney to represent the children, who argues for the children's wishes. The new rules hold that such attorney must confer with the children and argue for their wishes even if that attorney disagrees with it.

The role of the forensic mental health expert

In custody or visitation matters, if someone raises issues of mental illness or parental alienation, the court will typically appoint a neutral mental health expert to conduct a full evaluation of the parties, the children and any other pertinent individuals referred to as “collateral sources." The expert will interview the parties, the children and collateral sources. She or he may obtain medical records of the parties and may conduct psychological testing and render a diagnosis. At the end of the evaluation, the expert will submit a comprehensive report to the Court and usually make recommendations for the Court to consider. The expert may be called to testify and give his or her expert opinion at the trial.

Family Court v. Supreme Court.

Most grandparent custody and visitation cases are brought to Family Court. However, these cases could also be filed in the Supreme Court. In Family Court, the parties do not typically pay for the attorney for the children, who is appointed by the Court. While in the Supreme Court, the parties will usually be required to pay for the attorney for the children. Nevertheless, cases usually take longer to resolve in Family Court because of that Court's busy calendar since more cases are filed in that forum.

Preparing the best evidence

Since Grandparents are not permitted to conduct discovery or ask for documents and take depositions of the other parties before trial, they must gather sufficient evidence before they file their case. Grandparents should explore and find:

1) witnesses;

2) documents;

3) mental health records and reports

If any party has a drug or alcohol problem, the grandparents should raise that issue early in the case and request that the Court order that person to submit to a drug or alcohol test. A positive test could be used as evidence of unfitness at the trial. In addition, the Court could order Child Protective Services to conduct an investigation, which may lead to a neglect proceeding filed against that party.

The Trial

Grandparents must present their side of the case at trial first since they have the burden of proof. They must be ready on the first day of trial with all their witnesses, documents, and other evidence. Intensive preparation is necessary to ensure that they are successful and that they can survive a motion to dismiss after they have presented all their evidence.

Legal research must be conducted before a trial to find cases that are factually similar to the Grandparents' case and that support their position. In addition, if the forensic expert’s report is not favorable to the grandparents’ case or is otherwise deficient, the grandparents may consider hiring another mental health expert to critique the forensic expert’s report and testimony. They may call their own expert as a witness at the trial. In addition, grandparents must be prepared to conduct direct and cross examination of witnesses, and be prepared to make, and deal with, objections to evidence pursuant to the formal rules of evidence. If evidence is not properly presented and offered to the Court, in accordance with the rules, it will be kept out and not included in the final record for the Judge’s consideration.

Once the Grandparents have presented all of their evidence, the other parties will typically make a motion to dismiss for failure to “make a prima face showing" or to offer sufficient evidence. If this motion is granted, then the case will be dismissed. If the motion is denied, then the case will continue and the other parties will call their witnesses and present all of their evidence until they rest. Thereafter, the grandparents may conduct rebuttal, where they can call the same or new witnesses, and present new evidence to counter the evidence presented by the other parties. Once all parties have rested, the Court will hear closing arguments and/or require a post trial memorandum of law regarding the interplay of the law and the facts of the case.

No right to attorney's fees

New York State law does not provide the prevailing party in a parent v. non-parent custody or visitation proceeding the right to obtain attorney's fees or costs from the losing party.

The challenge of bringing a grandparent custody case while a neglect proceeding is pending.

Grandparents who file for custody of their grandchildren, when CPS has already brought a neglect proceeding against the parents, experience a very difficult time. These grandparents may have their case dismissed because the Court must set a goal for the neglect case, which usually, in the first instance, is" reunification with the children." These Courts will usually hold that when a neglect proceeding is pending with the goal of reunification, the Court and CPS are obligated to give the parents an opportunity, over a period of time, to seek help before their custody is permanently changed. Therefore, the Courts view the grandparent’ custody cases as interfering with that goal and will readily dismiss the grandparents’ case until the goal is changed.

However, in neglect cases, where the children have been temporarily placed with their grandparents for over one year, these grandparents may use their status as “kinship foster parents" and assert their right to be heard by the Court. At that point, they will be able to directly participate in the neglect case, may even call witnesses and present evidence at all trials and hearings. In this way, the grandparents could argue for a change of the goal, which could make their custody case more viable.