On April 10, 2013, in Pinsky v. Botnick,?a NY appeals court denied the paternal grandmother of four young children the right to visitation. The father of the children passed away in November ?2011, leaving behind his wife and children ages 9, 7, 5, and 3. The grandmother sought permission to spend time with the children and served the mother with a petition for visitation six weeks after the father passed away. At a hearing, the mother testified that her grieving children became ?hysterical? when they learned of the ensuing legal action they were now involved in and that they were now fearful they would be taken away by their grandmother. Testimony by the defendant?s expert explained ?that forcing an interaction would only strengthen their f ears.?
When determining whether to grant or deny grandparent visitation, a court must consider two important factors. First, it must determine whether the grandparent has standing to request visitation rights based on the death of a parent or other legitimate circumstances. If the court finds that the grandparent has established the right to be heard, then it must determine if the visitation is in the best interest of the child.
The Appellate Court in the Pinsky case?held that the death of the children?s father provided the grandmother with automatic standing to petition for visitation but that granting the petition was not in the best interest of the children. The court determined that the evidence, which included the mother?s testimony, the expert’s report, and the strong apprehension of the children regarding their grandmother, failed to meet the standard of the “nest interest of the child.” The court also stressed that “courts should not lightly intrude on?the f amily relationship against a f it parent’s wishes” and that “it is?strongly presumed that a f it parent’s decisions are in the child’s best interests.”
