Do Lesbian Grandmothers Have Visitation Rights?
Answered by Kathryn Kendell, executive director of the National Center for Lesbian Rights. June 19, 2001
Lesbian grandmother visitation rights
Q: Dear Kate,
What rights do a lesbian grandmother and her life partner in New York have regarding visitation with a grandchild whose parents are married and refuse to let the grandchild visit in the grandmother's home or let the grandmother take the child anywhere in the car?
Sincerely,
Sharon
A: Dear Sharon,
The law in this area is in a state of flux. In general, a grandparent has no legal right to visitation with a grandchild unless there is a state law permitting it. In New York, the grandparent visitation statute provides that, where both parents are alive, the grandparent(s) must demonstrate that "equity would see fit to intervene." More specifically, factors that have been considered by courts in determining whether such circumstances exist include whether the grandparent has an established a relationship with the grandchild, whether efforts have been made to establish one and the reasons for the parent's decision to object to visitation.
In your case, if the court found that such circumstances exist, the court would then have to consider whether visitation with you would be in the child's best interest. By law, the court should not consider your sexual orientation when making this determination. In practice, however, some judges may be biased against lesbian and gay people.
To add to the uncertainty of your situation, at least two New York courts recently have held that the New York grandparent visitation statute is unconstitutional in light of the U.S. Supreme Court decision in Troxel v. Granville, 530 U.S. 57 (2000), which struck down Washington state's grandparent visitation statute.
Because of the uncertainty, your best option may be to try to work out an agreement with your grandchild's parents. If you are unable to work out an agreement with them, you may want to consult a local attorney who has expertise in this area to advise you on how to proceed.
Sincerely,
Kathryn Kendell
Kendell is executive director of the National Center for Lesbian Rights.
June 19, 2001