In the area of family law, grandparents have certain legal rights regarding to custody of their grandchildren. This usually happens when the parents are unable to nurture in the best interests of the child. For example, parents may be suffering from mental health issues, substance abuse, or have Child Protective Services responding to reports of child abuse and/or neglect. If Social Services removes a child from the child’s parent(s), the department will investigate whether the child has suitable relatives who can apply to have the child placed in their home. This provides a child with the opportunity to stay with their grandparents versus placement in the foster care system. Thus, grandparents can obtain temporary or permanent custody of children who are blood related if the parents are unable to nurture in the best interests of the child.
Grandparents’ rights to child custody first came about in 1976 when the New York State Court of Appeals held that a parent’s superior right to custody could be disrupted only if “extraordinary circumstances” are proven and if it can be shown that it is in the child’s best interest for a non-parent to obtain custody. The New York Court of Appeals case, Bennett v. Jeffreys, 40 N.Y. 2d 543, 387 N.Y.S. 2d 821 (1976) established the findings needed by grandparents to assert custody rights over the parent which stated that grandparents must prove at least one of the following “extraordinary circumstances” to obtain custody of their grandchildren:
In 2003, the New York State Legislature amended Domestic Relations Law Section 72 to give custody rights to the grandparents of a child residing in New York State in a case where the grandparents can demonstrate the existence of “extraordinary circumstances.” The amended law extended the “extraordinary circumstances” to also include “extended disruption of custody.” This constitutes a “prolonged separation of the child and the parent for at least 24 continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the grandparents. ”https://nyassembly.gov/leg/?default_fld=&bn=S01614&term=2017&Summary=Y&Actions=Y&Text=Y Committee%2526nbspVotes=Y&Floor%2526nbspVotes=Y
Depending on the circumstances, New York courts may find that “extraordinary circumstances” exist where the extended separation is less than 24 months.
In order for grandparents to obtain custody of their grandchild, they must first establish legal grounds for the request. Grandparents must show evidence to the court in the form of testimony, documents, pictures, and even expert opinions to prove the “extraordinary circumstances.” Grandparents must also show that they have had a consistent and warm relationship with the child as well as their nurturing skills towards the child. Such findings will result in the legal transfer of custody from the child’s parents to their grandparents.
Under family law, the process of becoming a legal caregiver for a child that is not biologically your own is called kinship care. When filing a custody petition, matters are often complex and many issues may arise throughout the legal process. That’s why it’s important to have legal counsel to assist with custody petitions and court appearances.
New York family law attorney, Latonia Early-Hubelbank, Esq. at Early Family Law is highly experienced in this area of the law. She will answer your questions about your right to spend time with your grandchild and help guide you through the process. Give Early Family Law a call at to speak about your specific situation.
Put your trust in Latonia’s hands and get a complimentary consultation and case evaluation with our experienced family law attorney