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  1. #11
    Join Date
    Mar 2013
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    17,612

    Default Re: Grandma Visitation Case in New York

    Is there hostility between the parents of the child?

    Is there hostility between the mother and you?

    The reality is that you are NOT a grandparent, de facto or otherwise, and there is no "legal" basis for you to claim so.

    If you and your former "ward" are not on the good side of the mother then you will just have to resign yourself to occasional visits when the father has visitation. Perhaps you can encourage him to increase his visitation but you cannot compel it nor do I think any judge will rock the boat because of your feelings.

  2. #12
    Join Date
    Oct 2006
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    15,984

    Default Re: Grandma Visitation Case in New York

    Quote Quoting Nora123
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    Most of visitations (1-2 times a month) happened at my house for more than a year, hence on-going relationship claim, could I be considered a de facto grandma because of that?

    So far I haven't had visits with grandchild by myself but grandchild's father is agreeing for me to see grandchild during his time if he can't exercise his visitations
    due to his work schedule or what not...
    If dad picks up the child for his visitation and then lets you watch the child while he works that is totally acceptable.

    Can the mother legally not allow the above arrangement? What if mother agrees to it and after a while changes her mind about my visits,
    will I have a stronger case because I have had my own visits and now she is no longer allowing? I'm afraid to be at her mercy, she is not very reliable either.
    Again, I don't think that any judge would give you permission to exercise dad's visitation or give you visitation of your own.

    I heard that NY is very liberal with regard to gp visitations and it's all about the best interest of a child
    Its true that NY is one of two states that are somewhat liberal with gp visitations. Your problem is, is that you are NOT the child's gp. No matter how much you try to claim that you are a defacto gp, the reality of things is that you are not.

  3. #13
    Join Date
    Jun 2010
    Posts
    658

    Default Re: Grandma Visitation Case in New York

    Given the situation, I'm going to suggest that you go to any lengths possible to schmooz Mom. If you file for court-ordered visitation and lose? I can almost guarantee she will deny you contact outside of what Dad allows you when HE has the child. But if you make an effort with her, offer your help, offer to watch the child so she can get a break, you may find it is all more amicable. That whole bees/honey vs vinegar thing....

    My daughter's (stbx) husband had a child, and his mother did just that. Now? She has considerable time with her grandson. (also in NY)

  4. #14
    Join Date
    Nov 2019
    Posts
    11

    Default Re: Grandma Visitation Case in New York

    @Moderator, I changed my mind about posting the reply - please don't post

  5. #15
    Join Date
    Nov 2019
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    11

    Default Re: Grandma Visitation Case in New York

    @llworking

    I've read some inheritance cases where adoption wasn't formalized but it was argued as adoption by estoppel and hence inheritance was awarded.
    Can adoption by estoppel (of the bio-parent) be used in grandparent visitation case? and if not then why not?

    Thanks!

  6. #16
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    Oct 2006
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    15,984

    Default Re: Grandma Visitation Case in New York

    Quote Quoting Nora123
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    @llworking

    I've read some inheritance cases where adoption wasn't formalized but it was argued as adoption by estoppel and hence inheritance was awarded.
    Can adoption by estoppel (of the bio-parent) be used in grandparent visitation case? and if not then why not?

    Thanks!
    I cannot imagine, based on the USSC rulings on grandparent visitation, that you would have any hope of making that kind of argument. However, you can certainly get a consult with a local attorney on the issue.

  7. #17
    Join Date
    Oct 2014
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    7,711

    Default Re: Grandma Visitation Case in New York

    Quote Quoting Nora123
    View Post
    @llworking

    I've read some inheritance cases where adoption wasn't formalized but it was argued as adoption by estoppel and hence inheritance was awarded.
    Can adoption by estoppel (of the bio-parent) be used in grandparent visitation case? and if not then why not?

    Thanks!
    You did not mention which cases you had read so I cannot comment on them. However, there are two observations I have. First, adoption is something done by a parent. There is no process of adoption to become a grandparent. So there is a problem in trying to claim adoption by estoppel for you because you are not claiming to be functioning as a parent of the child. Second, in the NY cases I looked at the courts were careful to state that adoption by estoppel is limited to economic matters like support and inheritance and is not the grant of full adoption rights. Thus, the courts do not apply the principle to matters of custody and visitation. Thus I do not see you succeeding on this argument. But feel free to consult a NY family law attorney about your chances to win a visitation case and what it will cost you.

  8. #18
    Join Date
    Nov 2019
    Posts
    11

    Default Re: Grandma Visitation Case in New York

    @Taxing Matters, I meant adoption by estoppel not of the grandchild but of grandchild's bio parent who holds me his mom.
    i don't remember if it was an actual case I've read or just a few legal articles but I do remember one of the places mention that it's not a full adoption...
    Do you mind posting NY cases you mentioned?

    @llwoking, I'm not sure I understand your argument. It seems to me that most states allow grandparent visitations (some states quite liberal amount), in spite of USSC rulings on grandparent visitations

  9. #19
    Join Date
    Oct 2006
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    15,984

    Default Re: Grandma Visitation Case in New York

    Quote Quoting Nora123
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    @Taxing Matters, I meant adoption by estoppel not of the grandchild but of grandchild's bio parent who holds me his mom.
    i don't remember if it was an actual case I've read or just a few legal articles but I do remember one of the places mention that it's not a full adoption...
    Do you mind posting NY cases you mentioned?

    @llwoking, I'm not sure I understand your argument. It seems to me that most states allow grandparent visitations (some states quite liberal amount), in spite of USSC rulings on grandparent visitations
    You are wrong. Most states have dramatically curtailed their grandparent visitation laws in light of the USSC rulings. There are NO states that have liberal amounts anymore. There are some states that have no grandparent visitation rights at all anymore. PA and NY are the only two states remaining that are still fairly grandparent friendly, and neither of those have a history of granting GPV to people who are not actual grandparents of a child. Even step grandparents don't get standing.

  10. #20
    Join Date
    Jul 2018
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    2,065

    Default Re: Grandma Visitation Case in New York

    Quote Quoting Nora123
    View Post
    I've read some inheritance cases where adoption wasn't formalized but it was argued as adoption by estoppel and hence inheritance was awarded.
    Can adoption by estoppel (of the bio-parent) be used in grandparent visitation case? and if not then why not?
    It doesn't look like anyone has cited or discussed the actual law in this thread.

    Section 72(1) of the New York Domestic Relations Law states, in pertinent part, as follows:

    "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 may apply to the supreme court" to obtain a determination as to whether visitation would be in the child's best interests.

    That means that, before the court even gets into a "best interests" analysis, you have to establish two things just to get your foot in the door: (1) "that conditions exist which equity would see fit to intervene;" and (2) that you are a grandparent of the child at issue.

    Since you are admittedly not a grandparent of the child, that's the end of the discussion. The court does not have discretion under the law to open up third party visitation to persons other than grandparents.

    As far as "adoption by estoppel," that's a concept that is used only in a couple of contexts (e.g., payment of child support and inheritance). In the former case, it is being used against the purported parent, and in the latter case, it is being used against the purported parent's estate. You are suggesting using the concept of estoppel offensively (i.e., for your own benefit), but that's not how estoppel works, so I cannot even conceive that you could use it for the purpose you describe.

    As far as U.S. Supreme Court rulings, the only SCOTUS case of which I'm aware on the subject is Troxel v. Granville, 530 U.S. 57 (2000). That was an incredibly narrow case in which the Court reviewed the Washington Supreme Court's facial invalidation -- based on federal substantive due process -- of Washington's third-party visitation law. The law at issue in that case held that any person, at any time could petition for visitation with a child and that the court could order such visitation upon a "best interests" determination. Both the Washington intermediate appellate court and the Washington Supreme Court held that this law effectively allowed a state superior court judge to substitute his/her judgment for that of the child's parent(s) in terms of what's in the child's best interests. The U.S. Supreme Court affirmed this ruling and, in dicta, suggested parameters for a third-party visitation statute. In particular, it noted that a constitutional statute should limit who has standing and/or when a challenge can be made and/or should apply a standard of review beyond a garden variety "best interests" standard. Even at that time, few, if any other, states had third-party visitation statutes as broad as Washington's, and New York's unquestionably would survive a facial challenge on substantive due process ground. A decision of a New York Supreme Court that allowed a non-grandparent to obtain visitation would almost certainly be quickly reversed simply because the court exceeded its authority under the statute.

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