Families fall apart for any number of reasons: divorce, the death of a parent or child, financial issues, incarceration, drug and alcohol abuse. For grandparents who find themselves suddenly cut off from contact with a grandchild, the results can be devastating. The United States Supreme Court and the courts of New York have recognized that in many situations, grandparents do have rights to visitation with their grandchildren. Understanding these rights may help you maintain your relationship with your grandchild even when your relationship with the child’s parents is strained or severed.

The law in this area is very fact-specific, so a grandparent seeking visitation with a grandchild should consider consulting an attorney to discuss the specific course of action which their case requires, but there are a few guiding principles which govern grandparent visitation cases. In Troxel v. Granville, the United States Supreme Court stated that “the interest of parents in the care, custody and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.” This decision laid down the principle that fit parents are presumed to be acting in the best interests of their children, and therefore, when a grandparent is seeking visitation with a grandchild, courts are required to give “special weight” to a parent’s preference. The “special weight” given to parents is not dispositive, but will simply tip the scales in the parents’ favor if factors weigh equally on both sides.

In interpreting the standard articulated in Troxel, the courts of New York have developed a two-part inquiry to determine whether to grant visitation rights to a grandparent. First, the court must decide whether a grandparent has standing to seek visitation. Standing is defined as “the right to be heard,” or “the ability of a party to bring a case before the court.” Standing will be given automatically to a grandparent when one of the child’s parents is deceased. Alternatively, courts will grant standing if equitable circumstances require it. In determining equitable circumstances, a court will examine all the relevant facts, among which are whether the family is intact, the nature and basis of the parents’ objection to visitation, and the nature and extent of the grandparent-grandchild relationship.

If the court finds a grandparent has standing, then the second part of the inquiry is to determine if visitation is in the best interest of the grandchild. As discussed in Troxel, there is a presumption that a fit parent’s decisions are in the child’s best interests and that courts should not lightly intrude on the family relationship against a parent’s wishes. But if a grandparent has developed a loving relationship with a grandchild and suddenly his contact is cut off by a parent, a court may find it is in the child’s best interest to continue that relationship with his grandparent. Other factors which a court will consider in a best interest determination include: the emotional and physical needs of the child, the child’s wishes (considered in light of their age and understanding), and the motivations of the parent in limiting the visitation.

If you are a grandparent seeking visitation with your grandchild in New York, you may do so before the Supreme Court by commencing a special proceeding or by requesting a writ of habeas corpus, or you may apply for visitation in Family Court pursuant to §651 of the Family Court Act. Regardless of whether you wish to file in Supreme or Family Court (where there are no filing fees), you are urged to contact a family law attorney in order to determine the best strategy for your petition for visitation.

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A forensic examination of both parties may be ordered by the court in a contested custody dispute. The goal of the forensic examiner is to assist the court in making a determination as to what custodial arrangement is in your child’s best interest. “Best interest” is a legal determination that can be made only by the court. The court will issue an order directing the examiner issues about which the court seeks information.

Once child custody is at issue before a court, both parents have placed their physical and mental health at issue. The forensic examiner will seek release from you for your medical records if physical health is at issue or your medical records if your mental health is at issue.

If you have been ordered to undergo a forensic evaluation, you may have many questions about what to expect during this assessment. First of all, keep in mind that a forensic evaluation is an investigation of you and the other parent. The examiner may be a therapist, psychologist, psychiatrist or certified social worker, but he or she is not performing a counseling or therapeutic function in a forensic evaluation, he or she is making an assessment of your parenting skills and overall ability to be a “fit” parent to your child. The court may ask this evaluator to consider the best interests of the child when making his or her determinations, since ultimately this “best interest” standard will control the custody decision of the court. The court may ask the evaluator to investigate a specific claim used by a parent, such as alcoholism, drug abuse, parental alienation or domestic violence. You may be ordered to take a drug test or to submit police or medical records. You should cooperate with all aspects of the examination; if you fail to cooperate, the forensic can make a negative inference about you.

The examiner will wish to meet with you several times alone and then also with you and your child with the examiner acting as an “observer.” At this parent/child meeting, the examiner will be observing your interactions with your child and that you set appropriate boundaries. You should bring appropriate toys, games, books, paper and crayons to use during this session. Unlike the conversations you have with your attorney, these conversations with the forensic evaluator are not privileged. Anything you say can and will be used against you. You should focus on the positive aspects of your parenting and your loving relationship with your child.

In addition to meeting with you, the other parent and your child, a forensic evaluator will want to interview every person who lives in both households of the child. This may include spouses, paramours, siblings, and live-in grandparents or other relatives. A thorough forensic examiner will also want to speak with the child’s teachers, caregivers, and pediatricians. If there are issues that involve other third parties such as friends or neighbors, an evaluator may ask to speak with those parties as well.

After the evaluation is complete, the examiner will issue a written report. This report will be given to your attorney, and you will only be able to review it in your attorney’s office. You will not be able to take notes or to receive a copy of the report. The report will analyze your family history, which parent is most likely to promote a positive relationship with the other parent, and the child’s attachments to each parent. The examiner may make recommendations for one or both parents to attend parenting classes or recommend therapy for you or your child. This report may be used as a tool in settlement negotiations, and if no settlement can be reached, the forensic examiner may be called at trial to testify as to his or her findings.

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