Visitation Rights

Visitation rights are normally granted when sole physical custody has been given to a parent upon the parents’ separation. Physical custody is the custody exercised by the parent who spends majority of the time with the children. Physical custody should be distinguished from legal custody, which refers to the right to make important decisions for the child.

When sole physical custody has been granted to one parent, the non-custodial parent is generally granted visitation rights, which can include overnight visits. However, in New York, siblings, half-siblings, and grandparents may also request for visitation rights. In 2016, New York courts also recognized visitation rights for a non-adoptive non-biological parent of a child in a same-sex couple. Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016).

Visitation rights of a parent

Visitation rights are normally agreed upon by both parents. Courts will generally respect an agreement between parents regarding custody and visitation. However, if parents cannot agree, the courts will step in and decide on custody (physical and legal) and visitation rights based on the best interests of the child. In determining the best interests of the child, the court will appoint an attorney for the child who will talk to the child in private and tell the judge what the child wishes. A case worker may also be assigned to visit the homes of the parents, to speak to the other people who live in the home, such as the step-parent and other siblings, and to prepare a report about the parents asking for custody. In the hearing, each party will also present their own witnesses who can support their case. The judge may also speak to the child privately in his office without the presence of the parents. After taking into consideration all these, the judge will make a custody order based on the best interests of the child. Generally, joint physical custody is preferred if both parents manifest their willingness to be a part of their child’s life and fitness to care for the child. There is joint physical custody when the children spend an almost equal amount of time with both parents. However, in some instances when joint physical custody is not feasible, visitation rights are granted to the non-custodial parent.

In 2016, the New York Court of Appeals abandoned its previous definition of parent in. Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), and held that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law (DRL) § 70. This is a victory for parents in same sex couples who have separated but were not able to adopt or conceive the child of the other partner. It is usually when relationships among the parents deteriorate that one parent bars the other from seeing and having a relationship with the child.

Visitation rights of other family members

In New York, DRL § 72 gives grandparents the legal right to ask for court-ordered visitation:

1. when either or both of the parents of a minor child dies or
2. where circumstances show that conditions exist which equity would see fit to intervene

The second part on grandparents’ visitation rights under equity conditions is broad, and New York courts have interpreted this to mean:

1. when grandparents have a substantial existing relationship with their grandchildren; or
2. when the child’s parents have interfered with their efforts to establish or maintain a relationship

DRL § 71 grants siblings, whether full or half blood, visitation rights when it is in the best interests of the child. Courts generally grant visitation rights for siblings because they recognize that the relationships of the siblings should not suffer when parents separate.

Restrictions on visitation

Typically, visitation rights are only limited by time. But the court may also impose other restrictions or limitations. The court may order restrictions on visitation rights if there are issues of domestic violence, allegations of unsafe home conditions, or any other valid reason. These restrictions could be supervised visits (where visitation can only be made with a court-appointed supervisor), therapeutic supervised visits (where the court-appointed supervisor is a mental health professional, when the court believes that the parenting skills are lacking), or monitored transfers (where transfers are made in the presence of a neutral third person, when the court believes that transfers of the child from one to the other parent can be emotionally or physically dangerous).

Some examples of visitation rights

For example, Ellen and Portia are married. They would like to have a children. They agreed that Portia would get pregnant via artificial insemination and that they would raise the child together. For ten years, they raised the child and separated thereafter. Portia initially gave Ellen visitation rights over the child. However, Portia and Ellen’s relationship deteriorated after two years, and Portia thereafter refused to allow Ellen to see the child. Ellen was not able to adopt Portia’s child. Ellen now seeks visitation rights. Will the court grant this? Yes, a non-adoptive, non-biological parent in a same sex couple now has visitation rights under certain conditions under . Matter of Brooke S.B. v. Elizabeth A.C.C., supra.

Suppose Brad and Angelina got married and they have six children, Angelina was granted sole physical custody of the children. Angelina further proved that Brad was an alcoholic. Will the court deny Brad visitation rights over the children? No. The courts only deny visitation rights in extreme circumstances if it is shown that visitation can be dangerous to the children. The courts always prefer parents to have a relationship with the child, and just because a parent is an alcoholic does not mean the parent should not have a relationship with the child.

Suppose that Brad dies, can Brad’s parents ask the court for visitation rights over Angelina’s children, their grandchildren. Yes, Brad’s parents, as the children’s grandparents, have standing to file for visitation rights in New York. However, the grant of visitation rights will depend on the court’s determination of what will be in the best interests of the child.

Suppose that Brad is still alive, can Brad’s parents ask the court for visitation rights over the children, now that Brad and Angelina have separated and Angelina has sole physical custody over the children? Brad’s parents have to first establish that they either had a substantial relationship with the children prior to the separation, or that Brad and Angelina interfered with their efforts to have a substantial relationship with the grandchildren prior to separation. So, in this case, if prior to Brad and Angelina separating, Brad’s parents had a substantial relationship with the children, i.e., they were taking care of the children twice a week when Brad and Angelina had date nights, they would care for the children for extended periods when Brad and Angelina had to work out of state, then Brad’s parents have standing to request for court-ordered visitation.

Assuming that Brad is still alive and prior to Brad and Angelina separating, Brad’s parents had the opportunity to have a meaningful relationship with the children but were not able to because they lived in Florida. Brad’s parents never visited the children in New York, nor did they send gifts. At the most, they would Facetime with the children once a year during Christmas. Now that Angelina and Brad separated, Brad’s grandparents claim a legal right to visitation, will the court grant it? Since Brad’s parents never exerted any effort to be a part of the children’s lives prior to the separation, the court may consider that Brad’s parents don’t have standing to request for visitation rights.

Suppose that prior to marrying Angelina, Brad was married to Jennifer and they had one child, John. When Brad and Angelina married, John also became part of Brad and Angelina’s family where they would go out on family trips together with the other six children. John would also sleep over Brad and Angelina’s house where he would spend time and play with the other six children, his half-siblings. Now that Brad and Angelina have separated, can Brad, on behalf of John (who is a minor), file for court-ordered visitation rights as a half-sibling? Yes, siblings, whether by the full or half blood, are entitled to visitation rights.

Suppose that after the separation, Angelina met ARod who had two children of his own from a previous marriage. Angelina and ARod got married and they had a blended family where all their children became close because of the nearness in ages with each other. When Angelina and ARod separate, does ARod’s children have visitation rights over Angelina’s children? No, because they are not related by blood. Stepsiblings do not have visitation rights.

Family matters, custody issues, and visitation rights can be a complicated matter. Courts will always determine these issues based on the best interests of the child, and the best interests of the child depend on several factors where no one factor is controlling. This is why a good lawyer is important in presenting your case in the best possible light because the best interests of the child can oftentimes be subjective depending on the court’s appreciation of the facts of the case. A good lawyer will know how to present your case.

If you have any family law issues and need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].