Submitted by Anonymous, Feb 20, 2007 22:50

NY's grandparent visitation statute most likely had no more effect than allowing grandparents to have standing to come to court and ask for visitiaton. In order to get visitiaton grandparents had a high hurdle and the usual state legal standard of best interests of the child is not enough under U.S. Supreme Ct. doctrine. The reason - parent's are presumed to be acting in the best interests of the child when they deny grandparent visitation. Grandparent's, therefore, have to show something serious to overcome that presumption, such as "harm" or detriment to the child for the parent's decision.

Catchy phrases such as "surrogate mother" are not enough. A loving grandmother that lives in the home is just that, a loving granparent. They don't become a legal parent or guardian because of their close relationship. Suppose the father just didn't approve of what was happening in the house. Grandma had strange values, grandma drank, grandma smoked, grandma was nasty, etc., (the list goes on). Loving grandparent or not, the father has the constitutional right to step in and stop the contact when he sees its prudent. As a matter of fact, the SC case Troxel, the grandparents also had a loving relationship and the SC said it was not enough to overcome a fundamental right, especially when the parent is fit.

Interesting Supreme Court analsysis when they reiterated that parent's right s are "fundamental." Attacks on fundamental rights don't carry a relatively high burden - they carry the highest burden. That is elementary Constitutional law. For the most part, they are almost never overcome and are afforded strict scrutiny. NY just articulated a legal standard that would barely go halfway up the Constitutional ladder of scrutiny.

Descriptive phrases are not enough to overcome fundamental rights. Fundamental rights are to be defended and not circumvented. This was a sad decision for NY law.

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