Grandparent and Other Third Parties' Rights to Visitation and Custody
are Alive and Well in New York
Notes and comments by Elliot D. Samuelson, Editor
When the United States Supreme Court decided in
Troxel v. Granville,530 U.S. 57 (2000), that a Washington statute that permitted grandparents
and other third persons visiting rights was "facially invalid"
and unconstitutional, some legal scholars believed that the New York courts
would apply the rule to our own statute, Domestic Relations Law §72
and no longer address grandparental visitation or custody issues. However,
in a recent case,
Hertz v. Hertz, 291 A.D.2d 91, 738 N.Y.S.2d 62 (2nd Dept. 2002) following the
Troxel decision, it became clear that the New York statute would pass constitutional
muster, and the courts would retain jurisdiction to hear such cases.
Not only have the courts continued to address applications made by grandparents
for visitation but in another recent case
Charles v. Moreno, ___ A.D.2d (2d Dept., 2002), 741 N.Y.S.2d 255 , the Appellate Division,
Second Department, affirmed an award of by the Kings County Family Court
of custody of a ten-year old daughter and a twelve-year old son to the
paternal grandmother. Although the decision is short, it is pregnant with
Factually, the two children had been in the grandmother's care continuously
since 1994, a period of almost eight (8) years. Upon trial, it was demonstrated
that the mother exposed the children to excessive corporal punishment,
had limited parenting skills, lacked judgment concerning the children's
well-being, and her conduct had caused the children to be in serious physical
jeopardy. She left the children alone and unsupervised on various occasions
and perhaps of significance, suffered from a mental infirmity, diagnosed
as suffering from post-traumatic stress disorder coupled with narcissistic
and schizotypal personality traits. The Second Department concluded that
"the existence of this mental condition combined with the protracted
separation of mother from children and the attachment of the children
to their grandmother...support the hearing court's finding of extraordinary
Matter of Bennet v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, for the proposition that before
custody can be awarded to a non-parent, there must be a showing of extraordinary
Charlescourt also noted that the children were thriving, happy and well developed
in the grandmother's care, which appeared to be one of the controlling
factors. Finally, after discussing such criteria, the court concluded
that its determination was "...in the best interest of the children...,"
the last word, and bottom line, in all custody and visitation disputes.
The Second Department, has not hesitated to award custody of children to
other non-parents. For example, in
Matter of Benjamin B. 234 A.D.2d 457, 651 N.Y.S.2d 571 (2d Dept 1996), a four year old son's
custody was awarded to the father's fiancé, because the court
found that the "father's drug problems and the mother's "significant
psychopathology" constituted "extraordinary circumstances."
There, the court noted that the trial court is in the most advantageous
position to evaluate the testimony, character and sincerity of the witnesses.
In reaffirming the standard of finding extraordinary circumstances before
custody could be awarded to a non-parent, the court noted that the appointed
forensic psychologist had found that the mother was suffering from a chronic
schizoid personality disorder with depressive and impulsive features,
and that such condition coupled with the fact that the mother had been
separated from the child for a protracted period of time and the child
had a strong affiliation for the father's fiancé, supported
the trial court's finding of extraordinary circumstances. See also,
Emanuel S. v. Joseph E., 78 N.Y.2d 178, 573 N.Y.S.2d 36 (1991), which held that the grandparents
must show that they made sufficient effort to establish or maintain a
relationship with the grandchildren before making such application.
In another department, the Fourth, a similar result was obtained. In
Matter of Pamela S. S. v. Charles E, 280 A.D.2d 999, 720 N.Y.S.2d 669 (4th Dept, 2001) custody was transferred
from a father to an aunt and uncle because (1) there was a showing of
extraordinary circumstances justifying the court's intervention and
(2) the transfer to the non-parent was in the child's best interest.
In that case, the court reflected,
"Petitioners had the burden of establishing that respondent relinquished
his superior right to parent his son based on extraordinary circumstances,
such as 'surrender, abandonment, persisting neglect, unfitness, and
unfortunate or involuntary disruption of custody over an extended period
Here, the aunt and uncle established the neglect and unfitness of the father
who had sole custody of the child. The father had engaged in bizarre and
violent behavior with his son and left him unsupervised on numerous occasions.
Moreover, the father, as the parents in the other cases reviewed above,
had a history of mental illness requiring medication and there was some
question as to whether he would be likely to take his medication or submit
to treatment for his illness. It was also determined that the father had
a history of drug abuse. Once again, the court concluded that the trial
court's findings must be given great deference, and affirmed the award
of the transfer of custody, noting that the petitioners had met the two
prong burden of first establishing extraordinary circumstances and then
that the award to them would be in the best interest of the child.
In an earlier case decided in 1990,
Matter of Susan M. Hansen v. Post, 167 A.D.2d 702, 563 N.Y.S.2d 279, the appellate court in the Third Department
awarded custody to a social worker unrelated to the child where both parents
had been found to be unfit and the child had a severe emotional problem
that the parents were unwilling and unable to address in an appropriate
manner. The court discussed the two prong test of compelling extraordinary
circumstances and best interest of the child.
There appears to be no doubt currently, that in an appropriate case, grandparents,
as well as other non-parents, may obtain either custody or visitation
from parents who are not adequately fulfilling the role of custodial parent
to the detriment of a child's best interest. What conduct will constitute
extraordinary circumstances, as well as best interest will continue to
be made on a case to case basis. Certainly, mental illness, abuse, neglect,
drug addiction or abandonment will always be considered by the courts
in making these initial determinations, but such grounds are by no means
limiting. It will be left to the expertise of counsel to frame a petition
to satisfy the rule promulgated by the landmark decision in
Bennet v. Jeffreys, supra.
*Elliot Samuelson is the senior partner in the Garden City matrimonial
law firm of Samuelson Hause & Samuelson, LLP, and is included in "The Best Lawyers of America" and the "Bar
Registry of Preeminent Lawyers in America." He has appeared on both
national and regional television and radio programs, including Larry King
Live. Mr. Samuelson can be reached at (516) 294-6666 or Samuelson@SamuelsonHause.com.