Grandparental Visitation: Its Evolution In New York State

• Author: Elliott Scheinberg
• Pages: 289-376

Elliott Scheinberg=Elliott Scheinberg has an office in New York City where he exclusively practices matrimonial law. He is a Fellow of the American Academy of Matrimonial Lawyers and has authored various monographs in the field of domestic relations. Cardozo School of Law, J.D. (1981). This monograph was inspired by the very tragic murder of Mr. Scheinberg's most wonderful wife, Angela Susan Adina Scheinberg, in the World Trade Center on Sept. 11, 2001, and is respectfully submitted in her loving honor and memory. In addition to exemplifying class, elegance, and grace, Angela was the most noble and ethical person I had ever met. Her life was a paradigm of virtue and self sacrifice. Angela possessed the kindest of hearts and purest of souls.

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Dedicated in Loving Honor and Memory of Angela Susan Adina Scheinberg

Introduction

The subject matter discussed herein was inspired by a case that involved the parents of a mother killed in the World Trade Center attacks, on September 11, 2001.¹ Her surviving spouse denied the mother's parents any access to their eight-year-old grandson notwithstanding the child's extensive history with the maternal grandparents, including, but not limited to, spending entire summers in the grandparents' home in Europe, and receiving daily care and nurturing from them immediately following the radical Islamic terrorist attack.

Mr. and Mrs. Gavrusinas, the grandparents, filed a petition, pro se, in Family Court seeking visitation with their grandchild. On the return date of the motion, despite governing law to the contrary, Family Court summarily dismissed their petition without a hearing. The Court stated that it could not compel visitation over the surviving parent's objection because of the obvious "friction" between the grandparents and the surviving parent.¹ The father was permitted to unleash an unfettered litany of allegations against the grandparents, but the Family Court impermis-sibly muzzled the grandparents. The Court stated that the grandparents' "opinion did not count" and refused to allow the grandparents to utter even a syllable, whether legal (in support of their case of automaticPage 290standing and the concomitant right to a hearing on the petition) or factual (in defense of the allegations made against them).³

The grandparents, with the author's assistance, brought a motion to reargue.⁴ Upon reargument, Family Court conceded its error in the original ruling, which disregarded their automatic standing to file such a petition. This correction notwithstanding, Family Court, nevertheless, summarily rejected their petition, again. The court based its ruling on the best interests of the child-a rather bewildering decision in light of the settled law mandating the resolution of issues relating to custody and visitation via a plenary hearing and in no other fashion.⁵ An appeal followed.⁶

The purpose of this paper is to elucidate the governing law regarding all aspects of grandparental visitation including, but not limited, to constitutional challenges to the New York State grandparental visitation statute⁷ and post adoption petitions for visitation. The governing law on this issue, decisional and statutory, should not be viewed as an administrative rubber stamping formality, but rather as a weave of inextricably intertwined inquiries which, at each stage, cloak and shield the children from potentially adverse developmental consequences.

Children are wards of the state, an inviolable stewardship zealously guarded by our courts. Although it may be initially tempting to respond emotionally when an aging grandparent asks the court to intervene on his or her behalf, the final analysis requires the court to balancePage 291the grandparents' wishes and the child's right and need for access to his ancestral heritage with the child's well being. Accordingly, grandparen-tal visitation is not an open door with guaranteed access simply for the asking, quite the contrary. Visitation must be earned and demonstrated, in large measure, by the emotional history between the grandparent and the child. Evidence that the child enjoyed a prior ongoing, nurturing relationship with his or her grandparent(s) is the sine qua non to a grandparent's standing to seek, and hopefully gain visitation.⁸

I Common Law Rights of Grandparents Prior to the 1966 Statute

The heartfelt rush generated by a grandparent bouncing a grandchild on his or her lap, or taking a grandchild for a walk in the park and sharing stories on a summer day evokes imagery from Norman Rockwell's Americana. It does not conjure images of grandparents fighting in dark courtrooms for the right to see their issue, yet that is what has happened. The development of this recondite branch of law dedicated to grandchildren and grandparents originated nearly two generations ago in 1965. It has trekked arduous legislative and judicial paths for more than forty years to negotiate the lines of demarcation between otherwise inconceivably incongruous combatants: resistant parents asserting their constitutional autonomy to raise their children without state intervention and the newly created rights of senescent grandparents seeking to link their grandchildren to their heritage.

The right to seek and obtain grandparental visitation did not exist at common law.⁹ "At common kw, grandparents had no standing to assert rights of visitation against a custodial parent: a petition seeking such relief would necessarily have been dismissed."¹⁰ Grandparental vis-Page 292itation also is not a constitutional right, but rather an equitable right granted when a child's wellbeing has been compromised by a parent.

In 1953, the court mused over the "paucity of case law" in New York State with respect to grandparental visitation.¹¹ The Cox court, in the course of commenting on a perceived lack of clarity in the law with respect to grandparental visitation when both parents are fit, viewed grandparent-grandchild contact as a naturally wholesome activity for a child.¹² Regardless of the positive nature of the relationship, the court denied visitation because such relief was not then available absent "proof that the welfare of the child is being seriously impaired."¹³

Later, the court held that "[N]o matter how sympathetic the court may be with the desire of the maternal grandparents to see their granddaughter, there is no power in the court to deprive the natural parent of the right to the custody of his child, in the absence of proof that the welfare of the child is impaired."¹⁴

The Cox court, however, was not the first to weigh in on grandparental visitation rights. The 1950 decision in Noll v. Noll¹⁵ held that a petition for grandparental visitation was proper because it was "addressed to the equity side of court a parens patriae and is appropriate when the intervention is necessary for the welfare of the child."¹⁶ This is a more relaxed standard than set forth in Cox because Noll considered only the "welfare" of the child, whereas Cox required a showing of serious impairment. The Second Department decided a case the following year and in Application of Boses the court declared:

The court is without power to deprive the parent of the natural right to custody of his children in the absence of the proof that the welfare of the children is being seriously impaired. The burden of showing that the welfare of the child is not being promoted by present custodyPage 293is not carried by showing only that it might be desirable to have children visit their grandparents.¹⁷

In Anonymous v. Anonymous,,¹⁸ another decision before grandparen-tal visitation statutes were passed, the grandmother filed a petition seeking a continuation order of visitation which permitted her to visit...