Opinion
2016–13085 Docket No. V–21013–15
12-06-2017
In the Matter of Debora WINN, respondent, v. Naim DIAZ, appellant.
Salvatore C. Adamo, New York, NY, for appellant. Glen Gucciardo, Northport, NY, attorney for the child.
Salvatore C. Adamo, New York, NY, for appellant.
Glen Gucciardo, Northport, NY, attorney for the child.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ.
DECISION & ORDER Appeal by the father from an order of the Family Court, Suffolk County (Rosann Orlando, Ct. Atty. Ref.), dated October 20, 2016. The order, after a fact-finding hearing, granted the maternal grandmother's petition for visitation with the subject child pursuant to Domestic Relations Law § 72(1). ORDERED that the order is affirmed, without costs or disbursements.
The subject child was born in September 2015. Eight days after giving birth, the child's mother suffered a cardiac arrest, which has left her unable to speak or eat on her own. On or about December 28, 2015, the child's maternal grandmother commenced this proceeding seeking visitation with the child pursuant to Domestic Relations Law § 72(1), alleging that the child's father had refused to grant her access to the child since the mother's cardiac arrest. 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 child was in the child's best interests. The father appeals.
" ‘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 Gort v. Kull, 96 A.D.3d 842, 843, 949 N.Y.S.2d 62). The evidence adduced at the hearing established that the grandmother had a close relationship with, and maintained regular contact with, her daughter, who is the mother of the child. The grandmother further established that she had repeatedly contacted the father in an attempt to visit with the child, and that the mother would have allowed regular contact between the grandmother and the child had she not become incapacitated (see Matter of Seddio v. Artura, 139 A.D.3d 1075, 1076–1077, 32 N.Y.S.3d 299; 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 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 child was in the child'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. at 1433–1434, 954 N.Y.S.2d 793 ; 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 375, 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 child resulted principally from the animosity between the father and the grandmother, and the court providently exercised its discretion in determining that it was in the child's best interests to grant the grandmother's petition for visitation (see Matter of Seddio v. Artura, 139 A.D.3d at 1077, 32 N.Y.S.3d 299; Matter of Luft v. Luft, 123 A.D.3d 831, 832, 996 N.Y.S.2d 535 ; Matter of Gort v. Kull, 96 A.D.3d at 843, 949 N.Y.S.2d 62 ).
BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.