Opinion
2014-09167, Docket No. V-00659-12.
05-25-2016
In the Matter of Carol SEDDIO, respondent, v. Richard M. ARTURA, et al., appellants.
Rhonda R. Weir, Brooklyn, NY, for appellant Richard M. Artura. Amy L. Colvin, Huntington, NY, for appellant Gabriela Artura. Theresa Kloeckener, Lynbrook, NY, attorney for the children.
Rhonda R. Weir, Brooklyn, NY, for appellant Richard M. Artura.
Amy L. Colvin, Huntington, NY, for appellant Gabriela Artura.
Theresa Kloeckener, Lynbrook, NY, attorney for the children.
WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, and VALERIE BRATHWAITE NELSON, JJ.
Separate appeals from an order of the Family Court, Nassau County (Merik R. Aaron, J.), dated August 27, 2014. The order, after a fact-finding hearing, granted the grandmother's petition for visitation with her grandchildren pursuant to Domestic Relations Law § 72. ORDERED that the order is affirmed, without costs or disbursements.
On January 14, 2012, the paternal grandmother of the subject children commenced this proceeding seeking visitation with the children pursuant to Domestic Relations Law § 72(1). After a fact-finding hearing, the Family Court granted the petition, finding that the grandmother had standing to commence the proceeding and that her visitation with the children was in their best interests. The father and the mother separately appeal.
“ ‘When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry’ ” (Matter of Moskowitz v. Moskowitz, 128 A.D.3d 1070, 1070, 9 N.Y.S.3d 674, quoting Matter of Brancato v. Federico, 118 A.D.3d 986, 986, 988 N.Y.S.2d 678 ; see Matter of Gray v. Varone, 101 A.D.3d 1122, 1123, 956 N.Y.S.2d 573 ). “First, it must find that the grandparent has standing, based on, inter alia, equitable considerations” (Matter of Gray v. Varone, 101 A.D.3d at 1123, 956 N.Y.S.2d 573 ; see Matter of Moskowitz v. Moskowitz, 128 A.D.3d at 1070, 9 N.Y.S.3d 674 ; Matter of Brancato v. Federico, 118 A.D.3d at 986, 988 N.Y.S.2d 678 ). “If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child” (Matter of Gray v. Varone, 101 A.D.3d at 1123, 956 N.Y.S.2d 573 ; 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 ; Matter of Moskowitz v. Moskowitz, 128 A.D.3d at 1070, 9 N.Y.S.3d 674 ). “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 178, 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; see Matter of Moskowitz v. Moskowitz, 128 A.D.3d at 1070, 9 N.Y.S.3d 674 ). The court must also consider “ ‘the nature and basis of the parents' objection to visitation’ ” (Matter of Bender v. Cendali, 107 A.D.3d 981, 982, 968 N.Y.S.2d 175 ; 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 Matter of Brancato v. Federico, 118 A.D.3d at 986, 988 N.Y.S.2d 678 ).
Here, the Family Court providently exercised its discretion in determining that the grandmother had standing to petition for visitation pursuant to Domestic Relations Law § 72(1) (see Matter of Quinn v. Heffler, 102 A.D.3d 876, 876, 958 N.Y.S.2d 473 ; Matter of Gort v. Kull, 96 A.D.3d 842, 843, 949 N.Y.S.2d 62 ). The grandmother's testimony and the in camera testimony of the subject children established that the parents and the subject children lived with the grandmother for at least three to four years and that there was regular contact between the children and the grandmother before a dispute between the grandmother and the father led to an estrangement in the family (see Matter of Gray v. Varone, 101 A.D.3d at 1123, 956 N.Y.S.2d 573 ; Matter of Gort v. Kull, 96 A.D.3d at 843, 949 N.Y.S.2d 62 ; Matter of Dubiel v. Schaefer, 108 A.D.3d 1093, 1095, 969 N.Y.S.2d 311 ; Matter of Agusta v. Carousso, 208 A.D.2d 620, 621, 617 N.Y.S.2d 189 ).
The Family Court also properly determined that visitation between the grandmother and the children was in the children's best interests. Animosity alone is insufficient to deny visitation (see Matter of Hilgenberg v. Hertel, 100 A.D.3d 1432, 1433–1434, 954 N.Y.S.2d 793 ). In cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the grandchildren. Were it otherwise, visitation could be achieved by agreement (see id.; compare Matter of E.S. v. P.D., 27 A.D.3d 757, 758–759, 815 N.Y.S.2d 607, affd. 8 N.Y.3d 150, 831 N.Y.S.2d 96, 863 N.E.2d 100, with Matter of Wilson v. McGlinchey, 2 N.Y.3d at 382, 779 N.Y.S.2d 159, 811 N.E.2d 526, and Matter of Coulter v. Barber, 214 A.D.2d 195, 197, 632 N.Y.S.2d 270 ). Here, the estrangement between the grandmother and the children resulted principally from the animosity between the father and the grandmother, and given the grandmother's willingness to consent to a period of therapy with the children, the court providently exercised its discretion in determining that it was in the best interests of the children to grant the grandmother's petition for visitation (see Matter of Luft v. Luft, 123 A.D.3d 831, 832, 996 N.Y.S.2d 535 ).