Opinion
2014-05-28
In the Matter of Martin FELDMAN, appellant, v. Mark Anthony TORRES, et al., respondents.
Lisa Lewis, Brooklyn, N.Y., for appellant.
WILLIAM F. MASTRO, J.P., PETER B. SKELOS, JEFFREY A. COHEN, and HECTOR D. LaSALLE, JJ.
In a proceeding pursuant to Family Court Act article 6 and Domestic Relations Law § 72 for grandparent visitation, the maternal grandfather appeals from an order of the Family Court, Kings County (Perry, J.), dated June 19, 2013, which, without a hearing, denied the petition and dismissed the proceeding.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a hearing to determine whether an award of visitation rights to the maternal grandfather would be in the best interests of the child.
A court determining a petition for grandparent visitation must undertake a two-part inquiry. First, it must determine whether the grandparent has standing to petition for visitation rights ( seeDomestic Relations Law § 72[1]; 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 Waverly v. Gibson, 79 A.D.3d 897, 898–899, 912 N.Y.S.2d 681). If the grandparent establishes standing, the court must then determine whether visitation is in the best interests of the subject child ( see Matter of E.S. v. P.D., 8 N.Y.3d at 157, 831 N.Y.S.2d 96, 863 N.E.2d 100;Matter of Steinhauser v. Haas, 40 A.D.3d 863, 864, 837 N.Y.S.2d 660).
Here, given the nature and extent of the relationship between the maternal grandfather and the child, and the grandfather's efforts to maintain that relationship, the grandfather established the requisite standing to seek visitation pursuant to the equitable circumstances clause of Domestic Relations Law § 72(1) ( see Matter of Gray v. Varone, 101 A.D.3d 1122, 1123, 956 N.Y.S.2d 573;Matter of Gort v. Kull, 96 A.D.3d 842, 843, 949 N.Y.S.2d 62).
Under the circumstances present here, the Family Court improvidently exercised its discretion in dismissing the petition without holding a best interests hearing ( see Matter of Waverly v. Gibson, 79 A.D.3d 897, 899, 912 N.Y.S.2d 681;cf. Matter of Gray v. Varone, 101 A.D.3d at 1122–1123, 956 N.Y.S.2d 573). The record is devoid of any indication as to the nature and basis of the respondent mother's objection to visitation. To the extent that the Family Court dismissed the petition based on the grandfather's admission that the mother harbored animosity toward him and, for some reason, did not want him to have any contact with the child, such determination was error. “Although animosity coupled with family dysfunction may provide a basis for denying visitation rights, the existence of animosity between the parties alone cannot provide such a basis” (Matter of Gray v. Varone, 101 A.D.3d at 1123, 956 N.Y.S.2d 573 [internal quotation marks omitted]; see Matter of E.S. v. P.D., 8 N.Y.3d at 157, 831 N.Y.S.2d 96, 863 N.E.2d 100;Matter of Gort v. Kull, 96 A.D.3d at 843, 949 N.Y.S.2d 62;Steinhauser v. Haas, 40 A.D.3d at 865, 837 N.Y.S.2d 660).
The grandfather's remaining contention need not be reached in light of our determination.