Grandparents' VIsitation Rights to Children of Deceased Parent

Posted By Eiges & Orgel, PLLC || 18-Apr-2012

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 grandparents.

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.

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