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  1. #21
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    Default Re: Grandma Visitation Case in New York

    Quote Quoting pg1067
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    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.
    The USSC also did a memorandum ruling (I may not be using the correct phrase) for AZ in Dodge vs Graville that was based on their ruling in Troxel vs Granville.

  2. #22
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    Default Re: Grandma Visitation Case in New York

    Quote Quoting llworking
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    The USSC also did a memorandum ruling (I may not be using the correct phrase) for AZ in Dodge vs Graville that was based on their ruling in Troxel vs Granville.
    According to this article, written by a family law attorney in Arizona, following the Arizona intermediate appellate court's ruling in Dodge II (197 Ariz. 591; 5 P.3d 925 (Ariz. Ct. App. 2000)), SCOTUS vacated the decision and remanded the case for further consideration in light of Troxel. What happened after that isn't clear, but the author noted that "the Arizona Court of Appeals chose to make both sides unhappy" by doing "away with the grandparents’ requested contempt ruling" and leaving "the father’s constitutional issues . . . unresolved." Notably, the court in Dodge II stated that its "review [was] limited to determining whether the trial court abused its discretion by modifying the visitation order through the appointment of a supervising psychologist." How that ended up on cert to SCOTUS isn't clear from anything I read, and none of this makes me think the OP has any hope of getting a New York Court to expand section 72 to allow a petition by a person who isn't a grandparent but who purportedly acted in the role of a parent to the child's father.

  3. #23
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    Default Re: Grandma Visitation Case in New York

    Quote Quoting pg1067
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    According to this article, written by a family law attorney in Arizona, following the Arizona intermediate appellate court's ruling in Dodge II (197 Ariz. 591; 5 P.3d 925 (Ariz. Ct. App. 2000)), SCOTUS vacated the decision and remanded the case for further consideration in light of Troxel. What happened after that isn't clear, but the author noted that "the Arizona Court of Appeals chose to make both sides unhappy" by doing "away with the grandparents’ requested contempt ruling" and leaving "the father’s constitutional issues . . . unresolved." Notably, the court in Dodge II stated that its "review [was] limited to determining whether the trial court abused its discretion by modifying the visitation order through the appointment of a supervising psychologist." How that ended up on cert to SCOTUS isn't clear from anything I read, and none of this makes me think the OP has any hope of getting a New York Court to expand section 72 to allow a petition by a person who isn't a grandparent but who purportedly acted in the role of a parent to the child's father.
    Oh, I agree that NY isn't going to give the OP standing.

    In case you are curious at all, the reason why the AZ court including the ruling about the supervising Psychologist was because the grandparents demanded that the parents be held in contempt and the grandchildren be taken to a psychologist to be "made to love them again". (those were the exact words in the grandparent's motion)

  4. #24
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    Default Re: Grandma Visitation Case in New York

    what do you think about Peters v Castello in Supreme Court of PA 2005 after Troxel vs Granville? Doesn't it go against what you are saying?

  5. #25
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    Default Re: Grandma Visitation Case in New York

    Quote Quoting Nora123
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    what do you think about Peters v Castello in Supreme Court of PA 2005 after Troxel vs Granville? Doesn't it go against what you are saying?
    I'm not sure to whom this question is directed, but I assume you're talking about Peters v. Costello (not "Castello"), 891 A.2d 705 (2005).

    For starters, Pennsylvania case law is not binding in New York. At best, you could cite a non-NY case as persuasive authority, but I'm skeptical that a NY court would consider a non-NY case persuasive when the issue involves the interpretation of a New York statute (and esp. where that NY statute is completely unambiguous).

    That said, I agree that the case is factually similar to your situation (although there are a couple clear bases for distinction, and it's also important to note that the PA statute at issue in Peters appears no longer to be on the books in PA, and I couldn't find whatever law has taken its place). If you want to spend the time and energy to file an action in NY based solely on the possibility that a NY court will find a PA case persuasive, that's up to you, but you obviously should spend time conferring with a local family law attorney first and be prepared to pay a hefty retainer against future attorneys' fees. You should also be prepared for the likelihood that you'll get shot down in the supreme court and will have to pursue this matter with the appellate division and possibly the New York Court of Appeal.

  6. #26
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    Default Re: Grandma Visitation Case in New York

    @pg1067 thank you for your explanation about PA case
    the interpretation of a New York statute (and esp. where that NY statute is completely unambiguous)
    ;
    I did not see where in New York stature term "grandparent" is defined unambiguously; I don't see it in the quoted Section 72(1) of the New York Domestic Relations Law
    If it's written somewhere else, could you please point me to it? I'm not trying to be difficult, I'm just trying to understand the law how it's written...

    I did do a quick consult with an attorney; he wasn't 100% sure but did mention possibility of arguing estoppel or in loco parentis;
    he actually mentioned family court and not supreme, not sure if there is a difference

  7. #27
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    Default Re: Grandma Visitation Case in New York

    Quote Quoting Nora123
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    @pg1067 thank you for your explanation about PA case
    ;
    I did not see where in New York stature term "grandparent" is defined unambiguously; I don't see it in the quoted Section 72(1) of the New York Domestic Relations Law
    If it's written somewhere else, could you please point me to it? I'm not trying to be difficult, I'm just trying to understand the law how it's written...

    I did do a quick consult with an attorney; he wasn't 100% sure but did mention possibility of arguing estoppel or in loco parentis;
    he actually mentioned family court and not supreme, not sure if there is a difference
    Ok, then you have found an attorney who is willing to take your money even when you clearly don't have standing.

  8. #28
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    Default Re: Grandma Visitation Case in New York

    @llworking @pg1067

    I clearly value your opinion - otherwise I would not be coming back and asking questions.
    Could you please point me to where in New York stature term "grandparent" defined unambiguously so we can put this discussion to rest

  9. #29
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    Default Re: Grandma Visitation Case in New York

    Quote Quoting Nora123
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    I did not see where in New York stature term "grandparent" is defined unambiguously; I don't see it in the quoted Section 72(1) of the New York Domestic Relations Law
    If it's written somewhere else, could you please point me to it? I'm not trying to be difficult, I'm just trying to understand the law how it's written...
    I didn't say that the term "grandparent" was defined anywhere in the statute. I said the statute was unambiguous. When court's interpret statutes, they use ordinary English definitions of words unless there's some reason to do otherwise. The word "grandparent" is well understood to mean a parent's parent, which you admittedly are not.

    Any real lawyer you consult with is far more valuable than anything you'll get from any anonymous stranger on the internet. It's important to note that the lawyer with whom you consulted spoke of a "possibility of arguing." That's appropriately cautionary. If you want to spend money chasing something, that's your call, and I don't think it's the slightest bit unreasonable for an attorney to take your money for that purpose as long as the attorney is appropriately up front with you about the likelihood of success.

  10. #30
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    Default Re: Grandma Visitation Case in New York

    @pg1067 thanks

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