Extraordinary circumstances must exist for someone who is not a parent to be able to prevail against a parent for custody or guardianship in New York. Only if these extraordinary circumstances are found by a court to exist should the court then consider if it is in the best interests of the child(ren) for the grandparent, relative or other person to be given guardianship or custody. Further consideration will be given below to guardianship and custody requests by grandparents or other non-parents. But first I will address the topic of grandparent rights to visitation which I have seen come up a lot in my practice as a New York City and Long Island Child Custody Attorney.
Whether or not a grandparent has “standing” to petition for visitation is the first thing that must be established for a court to decide a grandparent visitation petition. Standing means whether or not the person has the right to be heard in court. If the petitioning party does not have standing the case should be dismissed. There is automatic standing if one of the parents of the child has died. In other cases, courts need to determine if equitable circumstances, dictate that a court should intervene to hear the grandparent visitation request. Such equitable circumstances could be extended disruption of custody by a parent, parental abandonment, physical or mental unfitness of a parent, among other scenarios.
If a grandparent is found to have standing, then a court must determine if it is in the child(ren)’s best interests for the grandparent to be given a visitation order. Usually if it is necessary for a grandparent to petition for visitation, a parent or parents with custody are opposed to the grandparent getting a visitation order. Because the care, custody, and control of children is considered a fundamental right of parents, there is a presumption to be given that “fit” parents are acting in the best interests of their children. Courts are therefore supposed to give “special weight” to a fit parent’s wishes about a grandparent visitation order. Courts still have the final decision on the matter, but the parental preference in such a situation needs to be considered by the court. The nature and extent of the relationship that the child already had with the grandparent(s), the child’s preferences, the needs of the children, and the reasons for the opposition to the visitation should all be weighed by the court before determining whether to grant the visitation order or not.
Besides, visitation, non-parents might be able to be granted either custody or guardianship over children. Usually the term custody is reserved for relatives while guardianship can be for relatives (like grandparents, aunts and uncles) and non-relatives. Guardianship of the person is when someone is given the task of the care of a child. Guardianship over the property is person given the control over the finances, funds, a home or other property of a child. Relatives that are adults, a friend of the family, and child-protective agencies can petition for guardianship of a child. Children that are over fourteen can enter petitions on their own behalf for someone else to be appointed as their guardian.
In New York, there is not a big distinction between a guardian of the person and custody, but in other states the distinction can be more pronounced. Therefore, when considering whether to petition in New York for guardianship or custody, the possibility of relocation to other states and their laws should be considered. Health insurance plans might differ whether they require guardianship or custody so health insurance plans should be considered when deciding whether to petition for guardianship or custody. Relatives that are adults, a friend of the family, and child-protective agencies can petition for guardianship of a child. Children that are over fourteen can enter petitions on their own behalf for someone else to be appointed as their guardian.
Testamentary guardianship can be given by parents through wills. A “standby guardian” can be designated in cases where a parent or guardian has a progressively chronic or fatal illness for example. A “standby guardian” may be appointed by a court to care for the child in the future in cases of the guardian or custodian’s incapacity or death.
The rights of grandparents, relatives and family friends and children in Long Island and New York City are important and complex in New York. Feel free to call for a free consultation about the topic. It would be my pleasure to speak with you about it.