A mother and father separate. Their children, ages 3 and 5, reside with their mother. The paternal grandmother goes to court to get visitation with the grandchildren, hoping to take the children for overnight stays with her relatives in a county nearby the mother’s home.
This is the situation dealt with in the recently issued opinion of “Matter of Hill v. Juhase.”
Here, I’ll discuss the court’s reasoning, which is especially instructive to grandparents who want to have a relationship with their grandchildren following a break-up of the parents.
Of course, the best thing for grandparents is to be very involved with their grandchildren, and to have an amicable and respectful relationship with both parents. Then, if the relationship between the parents ends, it is often possible for grandparents to stay connected.
But when serious problems develop between spouses or partners, their friends and family often take sides and are outspoken in doing so, rather than being supportive in more constructive ways, such as listening and finding and sharing information.
One result may be a badly damaged relationship between the one trying to offer assistance (let’s say a grandmother trying to help her son) and the other party (say, the son’s spouse). In this scenario, the mother may not care much for the grandmother after the breakup. Asking the mother for more time with the grandchildren may be awkward at best.
Still, I would encourage grandparents to attempt this conversation.
If headway can’t be made through discussions within the family, going to court won’t make the relationships warmer or friendlier, although a judge may rule in the grandparent’s favor.
Obviously, I would suggest mediation rather than litigation. Mediating allows for everyone to meet in a safe environment, and the parties are assisted in having constructive discussions and considering options everyone can live with — instead of having a third party who doesn’t know you make a ruling that at least one person is likely to be unhappy with.
But, if court becomes necessary, here are some factors the judge may look at:
In the “Hill” case, “Standing [the right to file a lawsuit or file a petition under the circumstances] requires evidence of the ‘nature and extent of the grandparent-grandchild relationship.’ ” This requirement means that there must be a real connection. A court will probably not be impressed with an occasional visit and the sending of birthday cards alone. If you want a relationship later, spend time with your grandchildren now. Call regularly. Learn about their routines and what they care about.
If, through no fault of your own, you can’t make such connections (for instance, the parent is uncooperative), keep trying. Effort does count, and such evidence may be helpful to your case.
“Hill” said standing also requires evidence of “the nature and basis of the parent’s objection to visitation.” Would you like to have your grandchildren with you overnight? If the parent objects, saying that the children are young and you have never babysat them and may not know what to do, or that you have a lot of company in your home where alcohol is served, a judge may question your suitability to care for the kids.
Additionally, the court in “Hill” stated, “The presumption that a fit parent’s decisions are in the child’s best interests is a strong one.”
If you are in the situation of having to prove to a judge that a parent is unfit, you’ll find that overcoming this “strong” presumption will not be easy.
Different jurisdictions may have various approaches, but it is always a good idea to keep nurturing that relationship with your grandchildren, and to maintain that relationship with the “other parent.” Because as the court in Hill also said, “Grandparents must allege and establish more than ‘love and affection’ for their grandchildren.”
New York City and Long Island-based divorce mediator and collaborative divorce lawyer Lee Chabin, Esq. helps clients end their relationships respectfully and without going to court. Contact him at [email protected] or (718) 229–6149, or go to lc-mediate.com/.
Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice. Discussing your particular case and circumstances with a legal professional before making important decisions is strongly encouraged to safeguard your rights.
