In today’s world of “blended” and multi-generational families, one of the most difficult issues facing Courts and families is child custody, or with whom a child(ren) should live. Courts have traditionally seen the parent/child relationship as paramount, and have only disrupted this relationship under “extraordinary circumstances,” such as when the parent has been physically or sexually abusive, has been severely and persistently neglectful, and/or has serious mental, physical, or substance abuse issues. Courts viewed third parties, such as grandparents, as “secondary” sources of child custody, and have given them the opportunity to parent only when the child’s biological parents were deemed unable or unfit for custody of the child. However, courts are beginning to recognize the realities of many families where grandparents are invaluable figures. Rather than dismissing grandparents as secondary figures when it comes to child custody, courts are looking to the best interests of the child.
Courts weigh several factors when they determine whether a particular living situation is in a child’s best interest. These factors include the financial and emotional stability of the proposed caretaker; whether the caretaker has drug, alcohol, mental or physical health issues; the presence of verbal, physical, or sexual abuse in the household; whether the proposed caretaker has significantly interfered with the parenting rights of the other parent; where the child’s siblings live; and the Court’s observation of the parties’ overall conduct. Courts may appoint an attorney for the child, who voices the child’s preference regarding with whom she or he wants to live. Courts may give more weight to the wishes of older children who can articulate a desire to live with someone other than their biological parents, as long as those wishes were not derived from the parent’s (mis)guidance.
A recent Queens Family Court case, Matter of Bhanmattie H. v. Roxanne H., (Judge John M. Hunt, June 19, 2017), held that the best interests of the child would be served by giving her paternal grandmother custody of the child. The biological mother had left the family home when the child was an infant, leaving her with the father and the grandmother. The parents subsequently divorced, and the father retained legal and physical custody of the child, with the biological mother having visitation rights. The biological mother rarely exercised her visitation rights while the father was alive.
The father passed away when the child was ten years old, at which time the mother demanded that the child live with her, and refused any contact between the grandmother and child. The grandmother petitioned for visitation rights after the child reported that she was unhappy and mistreated in the mother’s home, and a referee was appointed. This referee returned the child to the grandmother’s home on a temporary basis, pending the outcome of a child custody trial to determine the best interests of the child.
During the subsequent trial, the Court found the grandmother’s testimony credible and honest, while the mother appeared more concerned with receiving validation as the child’s mother, rather than a desire for the child’s happiness and stability. The Court found that, under the totality of the circumstances, and in furtherance of the child’s happiness and welfare, it was in the child’s best interests to live with the paternal grandmother, and thus granted her custody of the child. The Court noted that the grandmother had been a stable figure in the child’s life since infancy, and had bonded with her, in contrast to the mother.
If you are a grandparent seeking child custody or even visitation rights of a child, you need a competent and knowledgeable Family Law Attorney who can demonstrate that placement with you is in that child’s bests interests. Rachel Weisman has over twenty-seven (27) years of experience representing clients throughout the New York metropolitan area. Ms. Weisman will evaluate the circumstances of your case, and be your advocate and guide through the child custody process. She is assertive, compassionate and personable, and is well regarded in the legal community. You can trust Ms. Weisman to give your family the care and attention that they deserve, because you and your grandchild should receive nothing less.
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