Opinion
2019–13248 Docket No.V–30867–17
11-25-2020
In the Matter of Yesenia RODRIGUEZ, appellant, v. Abraham Nicko CONCEPCION, et al., respondents, Administration for Children's Services, et al., respondents-respondents.
Daniel P. Moskowitz, Jamaica, NY, for appellant. Louisa Floyd, Brooklyn, NY, attorney for the child.
Daniel P. Moskowitz, Jamaica, NY, for appellant.
Louisa Floyd, Brooklyn, NY, attorney for the child.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the maternal grandmother appeals from an order of the Family Court, Kings County (Frank M. Hoelldobler, Ct. Atty. Ref.), dated November 7, 2019. The order, after a hearing, in effect, denied the maternal grandmother's petition pursuant to Domestic Relations Law § 72(1) for visitation with the subject child and dismissed the proceeding.
ORDERED that the order is affirmed, without costs or disbursements.
The petitioner (hereinafter the grandmother) is the biological maternal grandmother of the subject child, who has been adopted. The grandmother filed a petition pursuant to Domestic Relations Law § 72(1), seeking grandparent visitation with the subject child. After a hearing on the issue of the grandmother's standing to seek visitation, the Family Court determined that the grandmother lacked standing and, in effect, denied the petition and dismissed the proceeding. The grandmother appeals.
" ‘When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry’ " ( Matter of McAvoy v. McAvoy , 155 A.D.3d 867, 868, 63 N.Y.S.3d 703, quoting Matter of Gray v. Varone , 101 A.D.3d 1122, 1123, 956 N.Y.S.2d 573 ; see Matter of Sands v. Sands , 174 A.D.3d 628, 629, 101 N.Y.S.3d 877 ). " ‘First, [the court] must find standing based on death or equitable circumstances," and "[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild" ( Matter of E.S. v. P.D. , 8 N.Y.3d 150, 157, 831 N.Y.S.2d 96, 863 N.E.2d 100, quoting Matter of Emanuel S. v. Joseph E. , 78 N.Y.2d 178, 181, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; see Matter of Marchant v. Marchant , 185 A.D.3d 1035, 1036, 128 N.Y.S.3d 656 ).
"In considering whether a grandparent has standing to petition for visitation based upon ‘circumstances show[ing] that conditions exist which equity would see fit to intervene’ ( Domestic Relations Law § 72[1] ), ‘an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,’ among other factors" ( Matter of Lipton v. Lipton , 98 A.D.3d 621, 621, 949 N.Y.S.2d 501, quoting Matter of Emanuel S. v. Joseph E. , 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; see Sands v. Sands , 174 A.D.3d at 629, 101 N.Y.S.3d 877 ; Matter of Moskowitz v. Moskowitz , 128 A.D.3d 1070, 1070, 9 N.Y.S.3d 674 ). In cases where such a relationship has been frustrated by a parent, the grandparent must show, inter alia, that he or she has made a "sufficient effort to establish [a relationship with the child], so that the court perceives [the matter] as one deserving the court's intervention" ( Matter of Emanuel S. v. Joseph E. , 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; see Matter of Lipton v. Lipton , 98 A.D.3d at 621–622, 949 N.Y.S.2d 501 ). "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’ " ( Sands v. Sands , 174 A.D.3d at 629, 101 N.Y.S.3d 877, quoting Matter of Emanuel S. v. Joseph E. , 78 N.Y.2d at 183, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; see Galizia v. Drucker , 185 A.D.3d 1030, 1031–1032, 125 N.Y.S.3d 882 ; Matter of Lipton v. Lipton , 98 A.D.3d at 622, 949 N.Y.S.2d 501 ).
Here, the Family Court's determination that the grandmother lacked standing is supported by the record. Under the circumstances of this case, equitable considerations did not warrant judicial intervention for the visitation she sought (see Matter of Marchant v. Marchant , 185 A.D.3d at 1036, 128 N.Y.S.3d 656 ; Matter of McAvoy v. McAvoy , 155 A.D.3d at 868, 63 N.Y.S.3d 703 ; Matter of Fondanarosa v. Grimm , 58 A.D.3d 840, 841, 874 N.Y.S.2d 497 ; Matter of Kenderes v. Norton , 22 A.D.3d 852, 853, 803 N.Y.S.2d 711 ; cf. Matter of Feldman v. Torres , 117 A.D.3d 1048, 1048–1049, 986 N.Y.S.2d 565 ; Matter of Waverly v. Gibson , 79 A.D.3d 897, 899, 912 N.Y.S.2d 681 ). Accordingly, we agree with the Family Court's determination, in effect, denying the petition and dismissing the proceeding.
SCHEINKMAN, P.J., DILLON, LASALLE and CHRISTOPHER, JJ., concur.