Opinion
V-09809-2018
11-19-2018
In the Matter of a Family Court Proceeding between DEBBIE E., Petitioner, v. S.F. and T.E., Respondents.
Debbie E., was pro se Parents are represented by David Chidekel, Esq., of Robert Ritholz Levy Sanders Chidekel & Fields LLP, 575 Madison Ave, New York, NY 10022, Phone: (212) 605-0161 Child is represented by Cynthia Lee, Esq, from the Children's Law Center in Brooklyn, NY
Debbie E., was pro se
Parents are represented by David Chidekel, Esq., of Robert Ritholz Levy Sanders Chidekel & Fields LLP, 575 Madison Ave, New York, NY 10022, Phone: (212) 605-0161
Child is represented by Cynthia Lee, Esq, from the Children's Law Center in Brooklyn, NY
Javier E. Vargas, J.
For the following reasons, the Motion to Dismiss for lack of standing filed by Respondents T.E. (hereinafter "Mother") and S.F. (hereinafter "Father"), for a dismissal of the Visitation Petition filed by Petitioner Debbie E. (hereinafter "Grandmother"), is denied accordance with the following decision. The Grandmother's Cross Motion is granted in part and denied in part.
On February 20, 2018, Grandmother, a Nassau County resident who works as a paralegal in the Family Court and matrimonial fields, filed a Visitation Petition in Nassau County Family Court, seeking to visit her grandson, who is the Child of her daughter, Mother, and Father. Subsequently, on March 20, 2018, the matter was transferred and later accepted by Kings County Family Court on April 16, 2018, as the Mother, Father (collectively "Parents") and the Child reside as an intact family in Brooklyn. The parties first appeared before the Undersigned on July 5, 2018; Grandmother appeared pro se and the Parents appeared with their attorney. The matter has been contentious from its inception and the Parents' counsel announced that he planned to file a Motion to Dismiss the Visitation Petition for lack of standing. Over the Parents' objections, this Court appointed the Children's Law Center to represent the best interests of the 7-year-old Child.
That same day, the Parents moved, by Notice of a Motion dated July 5, 2018, to dismiss the instant Petition arguing that equity should not intervene to grant standing to Grandmother in that she had a tenuous relationship with the Child with sporadic contact, was openly hostile toward the Parents, refused to correct her allegedly uncivil behavior or follow the Parents' rules, and did nothing to pursue a relationship with her grandchild since December 2015. By Notice of Cross Motion dated July 31, 2018, Grandmother cross-moved for the Court to deny the Parents' motion to dismiss, enter a temporary order of visitation, assign the title of "Anonymous v. Anonymous " to this matter, and impose sanctions upon Warren N. Stone, Esq., the Parents' attorney, pursuant to 22 NYCRR 130-1.1 in the sum of $10,000 for the filing and pursuing of a frivolous application.
On August 29, 2018, the parties, the Parents' counsel and the Attorney for the Child appeared, at which time, the Court acknowledged receipt of Father and Mother's Affidavits as well as Grandmother's pro se "Reply Affirmation." Thereafter, the Attorney for the Child asked the Court for more time to submit responsive papers, which were received by the Court on October 12, 2018, wherein she advocates for the denial of the Parents' motion to dismiss while conferring standing upon Grandmother and for an order of Observed and Evaluated Visits with costs to be borne by the parties. Such submission triggered a flurry of additional Replies and Memoranda as well as the retention of new counsel by the Parents, who also submitted his own Affirmation! After reviewing the voluminous submissions, this Court agrees with the Grandmother and the Attorney for the Child.
Pursuant to Domestic Relations Law § 72(1), "where either or both 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" may apply to the Supreme Court or Family Court for visitation rights (see Matter of Emanuel S. v. Joseph E. , 78 N.Y.2d 178, 573 N.Y.S.2d 36, 577 N.E.2d 27 [1991] ; see also Family Court Act § 651 ). The New York State Court of Appeals has ruled that a grandparent's right to visitation triggers a two-part inquiry pursuant to Domestic Relations Law § 72(1) : first, the court must determine whether the grandparent has standing based on death or equitable circumstances; and second, once the grandparents have established the right to be heard, the court must determine if visitation is in the best interest of the grandchild (see Matter of E.S. v. P.D. 8 N.Y.3d 150, 157, 831 N.Y.S.2d 96, 863 N.E.2d 100 [2007] ; Matter of Emanuel S., 78 N.Y.2d at 181, 573 N.Y.S.2d 36, 577 N.E.2d 27 ).
In order to determine standing to petition for visitation based on equity, the court must examine the nature of the grandparent-grandchild relationship and the nature and basis of the parents' objection to the visitation (see Matter of Emanuel S., supra at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; Matter of Fitzpatrick v. Fitzpatrick , 137 A.D.3d 784, 26 N.Y.S.3d 360 [2nd Dept. 2016] ; Matter of Waverly v. Gibson, 79 A.D.3d 897, 899, 912 N.Y.S.2d 681 [2nd Dept. 2010] ), and generally no full hearing is required as long as there is sufficient information to provide a sound and substantial basis for the determination (see Matter of Moskowitz v. Moskowitz , 128 A.D.3d 1070, 1071, 9 N.Y.S.3d 674 [2nd Dept. 2015] [no need for hearing as grandparents have no standing]; Matter of Lipton v. Lipton, 98 A.D.3d 621, 622, 949 N.Y.S.2d 501 [2nd Dept. 2012] [same]; Tolbert v. Scott , 42 A.D.3d 548, 549, 840 N.Y.S.2d 112 [2nd Dept. 2007] [standing found for grandparent without hearing] ). Where such a relationship has been frustrated by a parent, the grandparent must make a sufficient effort to establish one, "so that the court perceives the matter as one deserving the court's intervention" ( Matter of Brancato v. Federico , 118 A.D.3d 986, 988 N.Y.S.2d 678 [2nd Dept. 2014] ). "In assessing the sufficiency of the grandparent's efforts, ‘what is required of grandparents must always be measured against what they could reasonably have done under the circumstances’ " ( Matter of Lipton , 98 A.D.3d at 622, 949 N.Y.S.2d 501 [quoting Matter of Emanuel S. , 78 N.Y.2d at 183, 573 N.Y.S.2d 36, 577 N.E.2d 27 ] ).
Applying these principles to the case at bar, the Parents' Motion to Dismiss fails as Grandmother has sufficiently established standing to pursue her visitation request without the necessity of a hearing. The record reveals that prior to December 2015, Grandmother enjoyed a loving and healthy relationship with her grandson in that she babysat the Child, visited with him at his home, played with him, fed him, read with him and sang with him. Grandmother had also been invited to and attended the Child's school events for grandparents. While both Parents admit that Grandmother visited with the Child and helped them with his rearing before 2015, they candidly admit their aversion for how she treated them in front of the Child. They describe Grandmother as rude, hostile, critical, abusive, angry and confrontational toward them, prompting them to create a series of "rules" to curtail her behavior during her visits with the Child. Prior to the termination of her visits, Father had a few conversations with Grandmother via email about observing civilities with them, and met with her on July 15, 2015 to discuss concerns about her behavior around the Child. The record reflects that, at various times, Grandmother made attempts to appease the Parent's anxieties and wishes by participating in a therapy session with Mother, meeting with Father and exchanging emails, and she attempted to be polite with them for a few visits. Despite repeated efforts by the Parents to curtail Grandmother's relationship with her grandson and the various rules imposed by them, Grandmother persevered until December 2015 - when all concede - that the parents barred her from seeing their Child unless she complied with their conditions. To resume visitation, the Parents wanted Grandmother to, inter alia, participate in therapy to address her uncivil and angry behavior and her purported emotional problems.
However, it is undisputed that from 2016 to the present, Grandmother engaged in the following attempts to see the Child: she made frequent calls and text messages to Mother; sent emails to both Parents; sent letters and cards to Mother and the Child for birthdays and Chanukah; reached out to family members and friends to speak with the Parents on her behalf; sought the intervention of a Rabbi by summoning the Parents to the Bet Din (Rabbinical Court); attended the Child's skating event even though she was not invited; attempted to obtain information about the Child's school and camp events; and attempted to engage and speak to the Child during family events. The Court finds that these efforts by Grandmother were more than reasonable under the circumstances (see Matter of Lipton v. Lipton , 98 A.D.3d at 622, 949 N.Y.S.2d 501 ). After making repeated attempts outside the legal realm to resume visitation with her grandchild, Grandmother has ultimately and reluctantly sought this Court's intervention.
Although the Parents firmly believe that they were justified in preventing Grandmother from visiting with the Child, an acrimonious relationship is generally not sufficient cause to deny visitation (see Fitzpatrick, supra at 786, 26 N.Y.S.3d 360 ). Nor does the existence of animosity between the parties alone provide a basis for denying visitation (see Matter of Mastronardi v. Milano-Granito, 159 A.D.3d 907, 908, 72 N.Y.S.3d 152 [2nd Dept. 2018] ; Matter of Gray v. Varone , 101 A.D.3d 1122, 1123, 956 N.Y.S.2d 573 [2nd Dept. 2012] ), especially where, as here, the Parents' voluminous and repetitive statements ooze of an animosity and disdain between them and the Grandmother, not between her and the Child.Based on the record presented thus far, the Court thus finds that equitable circumstances exist to provide Grandmother with standing (see Matter of E.S., 8 N.Y.3d at 157, 831 N.Y.S.2d 96, 863 N.E.2d 100 ; Matter of Waverly v. Gibson, 79 A.D.3d at 899, 912 N.Y.S.2d 681 ). The Court further finds that, based on the submitted papers, no triable issues of fact exist requiring a hearing on the issue of standing (see Matter of Lipton , supra at 622, 949 N.Y.S.2d 501 ; Valerio v. Schumacher , 47 Misc 3d 1214[A], 2015 NY Slip Op. 50577[U], 2015 WL 1865690 [Supreme Court, Monroe County 2015] ). However, the Court has scheduled a hearing with the parties and counsel for February 28, 2019, to examine whether visitation with Grandmother is in the Child's best interests.
The question now turns to Grandmother's Cross Motion and whether she has established frivolous conduct sufficient for the imposition of sanctions on the Parent's former attorney. Pursuant to 22 NYCRR 130-1.1, a court in its discretion may "impose financial sanctions and/or costs [against] a party or the party's attorney for engaging in frivolous conduct" ( Grozea v. Lagoutova , 67 A.D.3d 611, 888 N.Y.S.2d 507 [2nd Dept. 2009] ). Conduct is frivolous where "it is completely without merit in law and cannot be supported by reasonable argument ; it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; and it asserts material factual statements that are false" ( 22 NYCRR 130-1.1 [c][1-3] ). Upon review of the papers presented by counsel here, the Court finds that, contrary to Grandmother's arguments, Mother and Father posed meritorious and colorable arguments against standing which were completely supported by the law; that in timely filing the motion in the initial stages of the proceeding, there was no intent to delay; and there is no indication that the Parents sought to assert material factual statements that are false. In some instances, the parties' factual arguments were undisputed, and while the arguments against standing were indeed arguable, the Court strictly applied the standard set forth by the Second Department in making its determination. Grandmother failed to show that the Parents' counsel conduct in filing the Motion to Dismiss was frivolous (see Braverman v. Yelp, Inc. , 128 A.D.3d 568, 10 N.Y.S.3d 203 [2nd Dept. 2015] ; Grozea v. Lagoutova , 67 A.D.3d 611, 888 N.Y.S.2d 507 [2nd Dept. 2009] ). Accordingly, sanctions against the Parents' former attorney are wholly unwarranted.
Lastly, Grandmother contends that this matter should be assigned the title of "Anonymous v. Anonymous" in the event of publication, as she has been in the matrimonial/Family Law field for twenty years, and Mother is in the Jewish Education field. Such a relief is addressed to the sound discretion of the trial court, upon consideration of the competing factors of the parties' need for such protection against the public's interest in maintaining public access to our courts (see Matter of Merrick v. Merrick , 154 Misc. 2d 559, 561, 585 N.Y.S.2d 989 [Supreme Court, New York County, 1992] ). Besides broad claims of potential embarrassment and harmfulness to herself and Mother, Grandmother has failed to demonstrate a need to override the public interest favoring the presumption of openness in judicial proceedings. In fact, Mother opposes the application and contends that there is no reason why this case should require any special degree of privacy. At this stage of the proceeding, this Court finds no reason to assign an "Anonymous" caption to any decision, order or any writing that may be published in any form or manner.
Based on the foregoing, the Court denies Mother and Father's Motion to Dismiss for lack of standing in the entirety, and this case is set down for a hearing on best interests on February 28, 2019 at 2:30 p.m. Grandmother's cross motion is granted in part, with the exception of assigning the title "Anonymous v. Anonymous" to this matter and imposing sanctions against the Parents' prior counsel; and it is further
ORDERED that a temporary of order of six (6) Observation and Evaluation Visits are to take place under the supervision of Comprehensive Family Services with the costs to be distributed 50% Grandmother, 25% Mother, 25% Father. The parties must forthwith contact CFS for their intake interview.
This constitutes the decision and order of the Court.