Rediscovering Third-Party Visitation under the Common Law in New York: Some Uncommon Answers

Introduction

One of the most important developments in family law over the past generation has involved the conditions under which non-parents (“third parties”) have (or have not) been permitted to secure court-ordered visitation with children with whom they have formed a significant relationship. This subject intersects constitutional, statutory and common law, parental rights, children’s rights, as well as the proper role of the judiciary in adapting rules to changing conditions in society. The topic has been important, in large part, because of the dramatic changes that have occurred in society over this period. A generation ago, most children were reared by two (married) parents in the United States. Today, both as a result of a high rate of divorce and a concomitantly high rate of unmarried couples, both same- and opposite-sex, living together as families, that is no longer true-and has not been for many years.

Before the 1960s, the common law was the only means by which courts in New York could award visitation to non-parents. In the mid-1960s, the New York State Legislature amended the Domestic Relations Law to provide a statutory basis for awarding visitation to grandparents, making it easier for them to succeed in their visitation requests. The legislature has expanded this legislation several times and also added siblings as statutorily authorized non-parents who may petition for court-ordered visitation. Today, the common law of visitation has been overtaken-eclipsed is the better term-by the statutory scheme.

This article will examine New York common law as way of background to a critical evaluation of relatively recent caselaw regarding non-parent visitation rights, particularly Ronald FF. v. Cindy GG., a major visitation decision issued by the New York Court of Appeals in 1987. In Ronald FF., the New York Court of Appeals held that the common law did not permit anyone other than legally recognized parents to secure court-ordered visitation over the opposition of the child’s fit parents. I hope to demonstrate that Ronald FF. was wrongly decided, in large part, because the court misapplied venerable common law principles. Its error, moreover, is part of a broader misperception shared by many courts regarding the common law authority to award visitation to a non-parent over the objection of a fit, non-abandoning parent.

Today, courts routinely erroneously assert that third parties were unable to secure visitation at common law because they lacked standing┬áto bring such proceedings. A closely related error modern courts commit is asserting that the common law stood as a barrier to permitting courts any power to make orders regarding the custody or visitation of children so long as the parents were found by the court to be “fit.” These twin errors have contributed to a modern myth that, because the common law prohibited non-parents from securing court-ordered visitation, the legislature came to the rescue by enacting several statutes giving standing to specific categories of non-parents, particularly grandparents. As a result of this myth, current law has it that all persons not specifically designated by the legislature as proper petitioners are out of luck. Furthermore, the modern description suggests that because the legislature enacted these laws in derogation of the common law, courts must strictly construe them. For example, many cases interpreting the grandparent visitation statute have said that grandparents had no standing at common law to seek visitation with their grandchildren when the children’s parents objected. As we shall see, much of this is not merely false; in crucial respects it gets things completely backwards.

Though the legislature has generously made it easier substantively for grandparents and siblings to secure court-ordered visitation, it has not attempted to enact visitation-related legislation that specifically addresses other categories of non-parents, such as former co-parents who do not have legally recognized parental status. The law today is quite clear that, as a result of Ronald FF, the common law is unavailable for this important category of significantly connected parent-like figures to seek visitation with children. As a consequence, current New York law requires that if such individuals are to secure “rights” to seek court-ordered visitation over parental objection, this relief will have to come from the legislature.

The premise of this article is that current New York law is deeply problematic as a matter of social policy and as a sensible understanding of family law principles, including constitutional principles. Simply stated, current law authorizes certain adults, such as grandparents, to seek court-ordered visitation with children even if they do not have a significant connection to those children. Simultaneously, the law denies adults who have served as important parent-like figures the chance to demonstrate that allowing a parent to sever arbitrarily all ties between the child and the former parent-like figure is harmful to the child.

This premise will remain in the background, in part because I have developed it extensively elsewhere. Proving that current New York law is irrational is the easy part. I aim here to make a more difficult claim. I hope to demonstrate that current New York law is wrong and that this is the direct result of the decision in Ronald FF. Specifically, Ronald FF‘s error was conceiving the non-parent’s request to secure visitation as an attempt to expand the common law beyond what courts had previously permitted. The article will show that the common law always was available to consider whether entering an equitable order was necessary to protect the child’s essential interests. A related error committed by the Ronald FF. court was treating the common law rules for custody and for visitation as substantively different. As we shall see, New York’s common law did no such thing until the Ronald FF. decision. By the time the court of appeals decided Ronald FF, key aspects of the common law’s treatment of third-party visitation were misunderstood. Once the legislature began enacting legislation giving automatic “standing” to categories of petitioners, such as grandparents or siblings, courts looked upon the common law as being less liberal because, among other things, common law did not give special treatment to non-parent petitioners based on their relationship to a child.

Ultimately, I hope to demonstrate that the court of appeals should reconsider its decision in Ronald FF. in light of the history of the common law described in this article. I also hope to encourage litigants to press the claim, contrary to the holding in RonaldFF., that there is common law authority to consider visitation applications by non-parents whose significant relationship with a child has been arbitrarily severed by a parent to the child’s detriment.

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