NY State Senate Bill 2021-S2165

Senate Bill S2165

2021-2022 Legislative Session

Relates to the rights of grandparents with respect to visitation rights or custody of minor children

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Archive: Last Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to children and families
Jan 20, 2021	referred to children and families

co-Sponsors

2021-S2165 (ACTIVE) - Details

See Assembly Version of this Bill:: A1355
Current Committee:: Senate Children And Families
Law Section:: Domestic Relations Law
Laws Affected:: Amd §72, Dom Rel L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S6402, A7821
2019-2020: S5252, A1544
2023-2024: S7470, A2886

2021-S2165 (ACTIVE) - Summary

Establishes the intent of the legislature to generally defer to parental choices regarding the care, custody and control of their children; mandates that the death of a parent shall be a factor when considering a grandparent's standing to receive visitation or custody; directs that costs be payable by an unsuccessful petitioner where a contest was brought in bad faith.

2021-S2165 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S2165

SPONSOR: MAY
 
TITLE OF BILL:

An act to amend the domestic relations law, in relation to the rights of
grandparents with respect to visitation rights or custody of minor chil-
dren

 
PURPOSE:

The purpose of this bill is to require that grandparents be granted
legal standing by a judge before being considered for visitation rights
or custody of a minor child.

 
SUMMARY OF PROVISIONS:

Section 1 amends part 1 of section 72 of the domestic relations law to
establish the requirements of the petitioner and of the court in a case
to overturn a parental decision regarding custody or visitation of their
child. Subsection (a) is amended to specify that any child in question

must reside in this state. A new subsection, (b), is added to stipulate
that a presumption exists in favor of parental decisions and any peti-
tioner wishing to overturn such a decision must allege that it would not
be in the best interest of the child if visitation were denied. Addi-
tionally, the court shall be required to check the criminal history of
the petitioner for domestic incidents and past or current orders of
protection. This subsection also stipulates that a court shall not
assign a child a guardian ad litem until such time as the standing of
the petitioner is determined. Part (c) is amended to reiterate that
overturning the decision of a parent regarding visitation must be in the
best interest of the child and that the court's finding shall be in
writing. An additional part, part 3, is added to allow costs and allow-
ances in whole or in part be payable by an unsuccessful petitioner where
the court finds that the contest was brought in bad faith or was frivo-
lous or non-meritorious.

Section 2 establishes the effective date.

 
JUSTIFICATION:

Currently, New York State law allows the potential for grandparents'
lawsuits to gain visitation rights or custody of minor children to be
unfairly expensive for parents and emotionally taxing for both children
and parents.

Parents who do not allow grandparents to visit their children for safety
reasons-because a grandparent is a convicted sex offender or felon, for
example-are often forced to pay tens of thousands of dollars in legal
fees to make the multiple court appearances necessary to answer grand-
parents' lawsuits. Recently, a family in New York State paid over
$40,000 in legal costs and spent over six months attending court appear-
ances to fight a grandparent's lawsuit for visitation rights because the
grandparent had a history of abusing other family members.

This bill seeks to prevent such situations by:

(1) Allowing, but not requiring, the court to consider whether or not
either or both of the parents of the child in question are deceased when
determining whether or not a grandparent has standing to commence a
proceeding to gain visitation rights or custody;
(2) Requiring that the court cannot determine whether or not a grandpar-
ent has standing to commence a proceeding to gain visitation rights or
custody of a child on the same day that a determination to establish the
best interests of the child is made;
(3) Allowing the court to direct that costs and allowances of a proceed-
ing, including attorney's fees, be payable by an unsuccessful petitioner
where the court finds that the contest was brought in bad faith or was
frivolous or non-meritorious.

These changes to the law would help ensure that children visit and live
only with adults with whom it is their best interest to do so; prevent
parents and their children from making unnecessary trips to the court-
room, protecting them from the emotional difficulties of testifying
about personal and sometimes traumatic family matters; and provide an
avenue for families to receive financial compensation if lawsuits
brought against them are brought in bad faith.

 
LEGISLATIVE HISTORY:

2019-2020: S.5252 (May) Referred to Children and Families /A.1544 (Woer-
ner) Referred to Judiciary
2017-2018: S.6402 (Marchione) Committed to Rules /A.7821 (Woerner)
Referred to Judiciary

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.

2021-S2165 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2165
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 20, 2021
                                ___________
 
 Introduced  by  Sen.  MAY  --  read  twice and ordered printed, and when
   printed to be committed to the Committee on Children and Families
 
 AN ACT to amend the domestic relations law, in relation to the rights of
   grandparents with respect to visitation rights  or  custody  of  minor
   children

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 72 of the domestic relations  law,  as  amended  by
 chapter 657 of the laws of 2003, is amended to read as follows:
   §  72. Special proceeding or habeas corpus to obtain visitation rights
 or custody in respect to certain infant grandchildren.  1.    (A)  Where
 [either  or  both  of the parents of a minor child, residing within this
 state, is or are deceased, or where] circumstances show that  conditions
 exist  which  equity  would  see  fit to intervene, a grandparent or the
 grandparents of [such child] A MINOR CHILD, RESIDING WITHIN  THIS  STATE
 may apply to the supreme court by commencing a special proceeding or for
 a writ of habeas corpus to have such child brought before such court, or
 may apply to the family court pursuant to subdivision (b) of section six
 hundred fifty-one of the family court act[; and on].
   (B)  WHEN  DETERMINING  WHETHER SUCH GRANDPARENT OR GRANDPARENTS SHALL
 HAVE STANDING TO COMMENCE SUCH PROCEEDINGS PURSUANT TO PARAGRAPH (A)  OF
 THIS SUBDIVISION, A STRONG PRESUMPTION EXISTS IN FAVOR OF PARENTAL DECI-
 SIONS  CONCERNING  VISITATION.  FURTHER,  THE  COURT SHALL NOT APPOINT A
 GUARDIAN AD LITEM UNTIL SUCH TIME AS STANDING  OF  SUCH  GRANDPARENT  OR
 GRANDPARENTS  HAS  BEEN  DETERMINED.  A PETITIONER SEEKING TO OVERTURN A
 PARENTAL DECISION MUST ALLEGE, WITH DETAIL  AND  SPECIFICITY,  THAT  THE
 CHILD WOULD EXPERIENCE SIGNIFICANT HARM TO HIS OR HER HEALTH, SAFETY, OR
 WELFARE  IF  VISITATION  WERE  DENIED. PRIOR TO FILING THE PETITION, THE
 PETITIONER MUST HAVE MADE A GOOD FAITH ATTEMPT  AT  RECONCILIATION  WITH
 THE  RESPONDENT  AND  THE  PETITION MUST ALLEGE SO WITH SPECIFICITY, AND
 MUST BE VERIFIED OR ACCOMPANIED BY A VERIFIED AFFIDAVIT. THE  PETITIONER
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD01171-01-1

 S. 2165                             2
 
 MUST DEMONSTRATE THAT HE OR SHE IS A FIT AND PROPER PERSON TO HAVE VISI-
 TATION  RIGHTS WITH THE CHILD AND THAT HE OR SHE HAS NO REPORTED HISTORY
 OF DOMESTIC VIOLENCE.  THE COURT SHALL ALSO CONDUCT ITS  OWN  SEARCH  TO
 DETERMINE  WHETHER THE PETITIONER HAS EVER HAD A DOMESTIC VIOLENCE INCI-
 DENT REPORT FILED AGAINST HIM OR HER. THE COURT SHALL FURTHER CONDUCT  A
 SEARCH TO DETERMINE WHETHER THE PETITIONER IS, OR EVER HAS BEEN, SUBJECT
 TO  AN  ORDER  OF PROTECTION OR HAS ANY CRIMINAL HISTORY.  THE COURT MAY
 ALSO CONSIDER WHETHER OR NOT EITHER OR BOTH OF THE PARENTS OF SUCH CHILD
 IS OR ARE DECEASED, HOWEVER, SUCH FACTOR SHALL NOT AUTOMATICALLY GRANT A
 GRANDPARENT OR THE GRANDPARENTS OF SUCH CHILD STANDING TO COMMENCE  SUCH
 PROCEEDINGS PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION.
   (C)  ON  the  return thereof, the court, by order, after due notice to
 the parent or any other person or party having the  care,  custody,  and
 control  of  such  child,  to be given in such manner as the court shall
 prescribe, may make such directions as the best interest  of  the  child
 may  require, for visitation rights for such grandparent or grandparents
 in respect to such child.  ANY FINDING CONCERNING THE BEST INTERESTS  OF
 THE  CHILD  SHALL BE SUBJECT TO THE STRONG PRESUMPTION THAT THE PARENTS'
 DECISION IS IN THE CHILD'S BEST INTEREST, AND  VISITATION  MAY  ONLY  BE
 ORDERED  IN CIRCUMSTANCES IN WHICH THE CHILD'S HEALTH, SAFETY OR WELFARE
 WOULD BE ADVERSELY AFFECTED BY THE DENIAL  OF  VISITATION.  THE  COURT'S
 FINDING SUPPORTING AN ORDER OF VISITATION SHALL BE IN WRITING.
   2.  (a)  Where  a  grandparent  or  the grandparents of a minor child,
 residing within this state, can demonstrate to the satisfaction  of  the
 court  the existence of extraordinary circumstances, such grandparent or
 grandparents of such child may apply to the supreme court by  commencing
 a  special  proceeding or for a writ of habeas corpus to have such child
 brought before such court, or may apply  to  family  court  pursuant  to
 subdivision  (b)  of  section  six hundred fifty-one of the family court
 act; and on the return thereof, the court, by order, after due notice to
 the parent or any other person or party having the  care,  custody,  and
 control  of  such  child,  to be given in such manner as the court shall
 prescribe, may make such directions as the best interests of  the  child
 may  require, for custody rights for such grandparent or grandparents in
 respect to such child. An extended disruption of custody, as  such  term
 is  defined  in  this section, shall constitute an extraordinary circum-
 stance.
   (b) For the purposes of this section "extended disruption of  custody"
 shall  include,  but  not  be  limited to, a prolonged separation of the
 respondent parent and the child  for  at  least  twenty-four  continuous
 months during which the parent voluntarily relinquished care and control
 of  the  child  and the child resided in the household of the petitioner
 grandparent or grandparents, provided, however, that the court may  find
 that  extraordinary  circumstances exist should the prolonged separation
 have lasted for less than twenty-four months.
   (c) Nothing in this section shall limit  the  ability  of  parties  to
 enter  into  consensual  custody  agreements  absent  the  existence  of
 extraordinary circumstances.
   3. THE COURT MAY DIRECT THAT COSTS AND ALLOWANCES IN WHOLE OR IN PART,
 INCLUDING ATTORNEY'S FEES, BE  PAYABLE  BY  AN  UNSUCCESSFUL  PETITIONER
 WHERE  THE  COURT FINDS THAT THE CONTEST WAS BROUGHT IN BAD FAITH OR WAS
 FRIVOLOUS OR NON-MERITORIOUS.
   § 2. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.

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Senate Bill S2165

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Sponsored By

Rachel May