Grandparent's rights are governed by the golden rule in custody and visitation cases. The golden
rule is that the court will act in the best interests of the child. The
Domestic Relations Law 72 grants grandparents standing to seek visitation
with their grandchild consistent with the best interests of the child
when one or both of the parents is or are deceased. The failure of a parent
and grandparents to resolve an issue of access to grandchildren in itself
indicates that there is a contentious relationship between the parties.
This contentious relationship in general would indicate that it would
not be in the interest of the grandchildren to have a relationship with
The courts have held that the animosity between the parties is not enough
to terminate access to the grandchildren by the grandparents. Although
the animosity between the parent and grandparent does not alone determine
what is in the best interest of the child, there is a presumption that
a fit parent's decision in regards to access to grandchildren would
be in the best interests of the grandchildren. In a recent case, the grandparents
of grandchildren whose father was killed on 9/11 were denied
visitation by the surviving wife.
She submitted evidence to the court that the grandparents were forcing
the grandchildren to look at pictures of their deceased father. This forcible
viewing was causing the children distress and anxiety. The court terminated
the grandparents’ visitation rights. My advice to grandparents who
seek visitation with their grandchildren is to avoid any type of conflict
with the surviving parent. Unless a surviving parent is unfit the courts
will generally act according to the wishes of the surviving parent.