By John Virdone, Esq.
The U.S. Constitution, Substantive and Procedural Due Process
The United States Supreme Court in the case Troxel v. Granville, 530 U.S. 57, 120 S. Ct 2053, 147 L.Ed. 2d 49 (2002) firmly held that parents have a fundamental constitutional right to the care and control of their children. Therefore, in order for the state to intervene in custody and visitation matters, it must find that there is some additional evidence to overcome the parents’ constitutional right. Even the parents’ decision as to who may have contact with their children is presumptively in the children’s best interest given the parental right to their care and control.
Bennett v. Jeffreys, 40 N.Y. 2d 543, 387 N.Y.S. 2d 821, 356 N.E. 2d. 277 (1976) is the seminal case in New York decided by the highest Court—the Court of appeals---, and sets forth the level of proof or evidence needed by grandparents and even other nonparents in order to overcome the parents’ right to custody of the children. There are several grounds or “extraordinary circumstances” that grandparents or nonparents can assert to overcome the parents’ fundamental right. If grandparents can successfully assert and prove any one of the following grounds then they can achieve what is known as “standing” and then proceed to have the Court go on to determine custody based on the best interests of the children. If nonparents fail to assert and prove at least one grounds then their case will be dismissed since they have not overcome the parents’ fundamental right.
The recognized grounds in New York are:
1) Parental unfitness;
2) Abandonment;
3) Surrender;
4) Persistent neglect;
5) Child abuse;
6) Psychological bonding to the nonparent, which threatens to destroy the child;
7) Extended disruption of custody
In Grandparent visitation cases, in order to obtain standing the grandparents must prove that one of the parents is deceased (their son or daughter) or that there are “exceptional circumstances.” This standard is different than the “extraordinary circumstances” standard in nonparent custody cases. In visitation matters, grandparents need to prove that “equity deems fit to intervene” or in other words, that the grandparents can prove that they have had a long, regular and loving relationship with the child, or at least that they have attempted to initiate one and have been prevented by the parents. Animosity between the parents and the grandparents alone is insufficient to justify not granting visitation. The parents must prove that the grandparents are interfering with their ability to care for and control the child.
The statutory provisions for Grandparent custody and visitation are found in New York Domestic Relations Law section 72 and the Family Court Act section 651.
The Burden of Proof
Nonparents have the burden of introducing sufficient evidence in the form of testimony, documents, and expert opinion, if applicable, to prove a particular grounds. They must do so through a trial using the formal rules of evidence.
The Best Interests of the Child Standard
The nonparents also have the burden of introducing sufficient evidence in the form of testimony, documents, and expert opinion if applicable to prove that they should be granted custody of the child because it is in the best interests of the children. Usually, the Court conducts only one trial were the nonparents must present evidence to prove extraordinary circumstances and the best interest of the child.
Temporary custody or visitation
Typically, the Courts do not grant temporary custody or visitation to grandparents while the case is pending because that would infringe on the parents’ fundamental right without a full trial.
The role of the attorney for the child f/k/a law guardian
In contested custody and visitation matters, the court will usually appoint an attorney to represent the child, who argues for the child’s wishes. The new rules hold that such attorneys must confer with the child and argue for the child’s wishes even if that attorney disagrees with it.
The role of the forensic mental health expert
In custody or visitation matters, if one party raises issues of mental illness or parental alienation, the court will typically appoint a neutral mental health expert to conduct a full evaluation of the parties, the child and any other pertinent individuals, referred to as “collateral sources.” The expert will interview the parties and the child and other individuals. She or he may obtain medical records of the parties and may conduct psychological testing and render a diagnosis. At the end of the evaluation, the expert will submit a comprehensive report to the Court and usually make recommendations for the Court to consider. The expert may be called to testify and give his or her expert opinion at the trial.
Going to Family Court v. Supreme Court
Most grandparent and nonparent custody and visitation cases are brought in Family Court although, these cases could also be brought to the Supreme Court. However, in Family Court, the parties do not typically have to pay for the attorney for the child, who is appointed by the Court. While in the Supreme Court, the parties will usually have to pay for the attorney for the child. Nevertheless, cases usually take longer to resolve in Family Court because there are many more cases in that forum.
The best evidence
Since nonparents are not permitted to conduct discovery or ask for documents and take depositions of the other parties before trial, they must gather sufficient evidence before they file their case. Nonparents should explore and find:
1) witnesses;
2) documents;
3) mental health records and reports
If one of the other parties has a drug or alcohol problem, the nonparents should raise that issue early in the case and request that the Court order that person to submit to a drug or alcohol test. A positive test could be used as evidence of unfitness at the trial. In addition, the Court could order Child Protective Services to conduct an investigation, which may lead to a neglect proceeding filed against that party.
The Trial
Nonparents must present their side of the case at a trial first, since they have the burden of proof. They must be ready on the first day of trial with all their witnesses, documents, and other evidence. Much preparation is necessary to ensure that they are successful and that they survive a motion to dismiss after they have presented all their evidence.
Legal research must be conducted before a trial to find cases that are factually similar to the nonparents’ case and that support their position. In addition, if the forensic expert’s report is not favorable to the nonparents’ case or is otherwise deficient, the nonparents may consider hiring another mental health expert to critique the forensic expert’s report and testimony. They may even call their own expert as a witness at the trial. In addition nonparents must be prepared to conduct direct and cross examination of witnesses and be prepared to make and deal with objections to evidence pursuant to the formal rules of evidence. If evidence is not properly presented and offer to the Court in accordance with the rules, it will be kept out and not included in the final record for the Judge’s consideration.
Once the nonparents have presented all of their evidence, the other parties will usually make a motion to dismiss for failure to “make a prima facie showing” or offer sufficient evidence. If this is granted, the case is dismissed. If it is denied, then the case continues and the other parties will call their witnesses and present all of their evidence until they rest. Thereafter, the nonparents may conduct rebuttal, where they can call the same or new witnesses and present new evidence to counter the evidence presented by the other parties. Once all parties have rested, the Court will hear closing arguments and/or require post trial memorandum of law regarding the interplay of the law and facts of the case, as a last effort, to persuade the Judge or Referee that he or she should decide in favor of one party or another.
No right to attorneys fees
New York State law does not provide the prevailing party in a parent v. nonparent custody or visitation proceedings the ability to obtain attorneys fees or costs from the losing party.
The challenge of bringing a grandparent custody case while a neglect proceeding is pending
Grandparents or nonparents who file for custody of children, when CPS already has brought a neglect proceeding against the parents, experience a very difficult time. They may have their case dismissed without prejudice typically because the Court must set a goal for the case, which usually, in the first instance, is reunification with the children. Courts will usually hold that when a neglect proceeding is pending with a goal of reunification, the Court and CPS are obligated to give the parents an opportunity over time to seek help before their custody is permanently changed. Therefore, the Court views the grandparents’ custody case as interfering with that goal and will readily dismiss the grandparents’ case until the goal is changed or the parents, having failed over time to better themselves, exhaust the Court’s patience.
However, in such cases, where the children have been temporarily placed with the grandparents for over one year, the grandparents may use their status as “kinship foster parents” to be able to directly participate and be heard in the neglect case, and thereafter, may even call witnesses and present evidence at all trials and hearings. In this way, the grandparents could argue for a change of the goal, which could make their custody case viable.
A note regarding settlement agreements in custody cases
Often in the course of grandparent or nonparent custody matters, the parties, with the Court’s encouragement, engage in settlement discussions. These discussions usually involve issues pertaining to final custody, whether sole or joint, visitation for the parents, whether supervised or unsupervised, and perhaps drug rehabilitation programs and testing, if applicable. When settlement terms are agreed upon, those terms are usually read into the court “record” before the Judge or Referee. Then those terms are incorporated into a proposed Court Order that is submitted to the Judge or Referee for signature. Once the Order is signed it can be enforced. This type of Order, which is achieved through a settlement by all parties, is usually referred to as a “Consent Order.” or “an Order on consent.” When grandparents or nonparents agree to settle the matter and obtain custody through a Consent Order, they usually do not realize, and are not properly advised, that since the Court has not found that they have proven some “extraordinary circumstances”, they will be obligated to do so in any future case that the parents may bring to modify custody or to seek the return of the children. Therefore, this means, for example, if several years after the Consent Order is made, the parent file a petition to obtain custody of the children, the grandparents and not the parents, will have the initial burden of proving some grounds against the parent. If the nonparents are not successful in proving a grounds against the parents, at such time, the Court must issue an Order giving the parents sole custody of the children. Most grandparents are devastated to learn after caring for the children for several years that they must contend with the burden of proving extraordinary circumstances once again. One solution to this dilemma, is to incorporated into the Consent Order, a provision that acknowledges that there are “extraordinary circumstances,” that the nonparents have met their burden, and that they need not prove it again in any future proceedings. In this way, in any future custody matter, it will be clear that the parents will have the initial burden of proving that custody should be modified because there is a sufficient change in circumstances and that it is in the best interest of the children.
The Law Firm of Seidner & Virdone, LLP specializes in: Grandparent’s Rights, Kinship Caregiver’s Rights and all Family Law Matters,Elder Law, Adult Guardianships, Wills, Trusts, Estates & Probate.
Seidner & Virdone, LLP
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Manhasset, New York 11030
Phone (516) 570-3875
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