Opinion
V-15574-06.
Decided April 17, 2008.
Brenna, Brenna Boyce, by Sheldon W. Boyce, Esq. for Petitioner.
Monroe County Public Defender's Office, by Pamela J. Bayer, Esq. for Respondent Amy N.
Michael D. Schmitt, Esq., Law Guardian.
Dandrea L. Ruhlmann, J.
Can a grandmother who enjoyed a significant relationship with her grandson continue to visit him despite opposition from the boy's parents? By petition filed December 13, 2006, Petitioner maternal grandmother Dorothy M. (Grandmother) seeks visitation pursuant to Domestic Relations Law § 72 with her grandson Jacob (d/o/b:-/-/-). Although Respondent parents Amy N. (Mother) and Trevor N. (Father) oppose visits, the Court finds both that Grandmother has standing and it is in Jacob's best interest that Grandmother be awarded bi-monthly visits with him.
The petition also sought visitation with Jacob's older brother, Jesse, but during the course of the proceeding Grandmother voluntarily withdrew her petition regarding Jesse ( see infra).
Respondent parents met and had their eldest son Jesse (do/o/b: ___ / ___/ ___) out of state, moving back to Rochester and into the home of Grandmother and Andrew M. (Grandfather) (hereafter "the family home") in 1999 shortly before their second son Jacob's birth. Mother, Father, Jesse and Jacob lived in the family home for approximately one year when they moved across the street where they lived for approximately two years. Respondent parents divorced and Mother, Jesse and Jacob moved back into the family home for approximately two more years — from 2002 until 2004 — before moving around the corner and into their own apartment. Even after Mother and the boys relocated to their own apartment, Grandmother continued to see the boys at least twice weekly until May 2006. Around that time Grandmother and Grandfather — in the midst of a highly contested divorce — decided to sell the family home to Mother at a discounted price. Grandmother still was living in the family home in May 2006 and consented to having Mother and the boys move back in with her until she could relocate but first asked that Mother sign an agreement requiring, inter alia, that Mother not allow Grandfather into the home. Mother not only refused to sign the agreement but completely severed both her and the boys' relationships with Grandmother.
Mother and the boys moved into the family home approximately two weeks later, after Grandmother moved out. In August 2006 Jesse was adjudicated a juvenile delinquent and placed on probation; Jesse since has exhibited compounding troubling behavior and voluntarily was placed and currently resides at Hillside Children's Center. Mother and Grandfather agreed to have Jacob move in with Grandfather sometime before the start of the 2007 school year. Grandmother petitioned for visitation with both Jacob and Jesse but voluntarily withdrew her petition as it pertained to Jesse. The Court heard testimony from Grandmother and witnesses who testified on her behalf including: friends Jean Ticen, David Burke, Maria Hall and Nora Walters, maternal great grandfather Eugene Stoklosa, and maternal aunts Rosemary Tonner and Mary Jo Cortin; from Mother and her witnesses including Father and Grandfather. The Court also held in camera interviews with both Jacob and Jesse.
Standing
A grandparent of a child with two living parents has standing to seek visitation only if she can establish circumstances in which equity would see fit to intervene ( Emanuel S. v Joseph E., 78 NY2d 178). Although circumstances under which "equity would see fit to intervene" have not been sharply defined, the Court must consider both (1) the nature and extent of the grandparent-grandchild relationship ( Emanuel S. v Joseph E., 78 NY2d 178; Matter of Varney v McKee , 44 AD3d 1178 [3d Dept 2007] [sufficient evidence evinced a relationship between petitioner-grandparent and the child "deserving the court's intervention"]); and (2) the nature and basis of the parents' objection to visitation ( Matter of Lynda D. v Stacy C. , 37 AD3d 1151 [4th Dept 2007], citing Matter of Follum v Follum, 302 AD2d 861 [4th Dept 2003]; Matter of Emanual S. v Joseph S., 78 NY2d 178). While the equitable circumstances provision of the domestic relations statute is not intended to allow automatic standing to seek visitation ( Wilson v McGlinchey, 2 NY3d 375), it is error to conclude that standing is permitted only in cases where there was a change in the status of the nuclear family, or interference with a derivative right, or some abdication of parental responsibility ( Matter of Emanuel S. v Joseph S., 78 NY2d 178).
Here, Petitioner-Grandmother has established that equity sees fit to intervene and allow her standing to petition for visitation with Jacob based upon her extensive relationship with him. It is undisputed that Jacob lived with Grandmother for approximately three out of the first five years of his life. During that time, Grandmother helped care for the boys, including ensuring that they got on the school bus, cooking meals for them, participating in their bedtime routine — bathing and reading before they fell asleep, taking them to the doctor or dentist, and volunteering for school activities. She also babysat for the boys and often watched them when they were out of school and their parents could not arrange for daycare. Even when Jacob did not live in Grandmother's home, he lived nearby and had either daily or biweekly contact with Grandmother until May 2006 — when Jacob was almost seven (7) years old.
While both Mother and Father oppose Grandmother's visitation with Jacob, the primary basis of their objection is the strained relationships between both Grandmother and Grandfather and Grandmother and Mother; they do not object based upon Grandmother's relationship and/or interactions with Jacob. Indeed Father opposes Jacob's visitation with Grandmother because Grandmother and Grandfather's strained relationship has resulted in an acrimonious relationship between Grandmother and Mother which would not have a good effect on Jacob, yet Father allowed Grandmother to see Jacob for a short visit on his birthday in 2006 — although against Mother's wishes. Mother testified that she believes Grandmother would speak derogatively about Grandfather in front of Jacob.
Mother and Grandmother had a relationship until their falling out in May 2006 when Mother refused to move into the family home until Grandmother vacated the premises. Mother admitted that she has not conversed with Grandmother since May 21, 2006. While Mother testified that she and Grandmother were never on good terms, the collective evidence rather shows an up-and-down mother-daughter relationship. While the two often argued over the cleanliness of the house, the blended families lived together for almost three years. These arguments occasionally resulted in physical confrontation between Mother and Grandmother and at least once in Grandmother ordering Mother, Father and the boys out of the family home, yet Mother and Grandmother also shared some tender moments ( see Petitioner's Exhibits 4, 5).
Mother testified that Grandmother's discipline consisted of screaming, swearing and occasional physical acts against the boys, yet Mother could describe only two specific incidents: one where Grandmother allegedly grabbed Jesse by the shoulder and another where she grabbed Jesse's hood causing a tear in his sweatshirt. Indeed, Father testified that both Grandmother and Mother would occasionally "swat" Jesse if he misbehaved at the dinner table. Mother testified that Grandmother made her feel that she was a slacker and a bad mom who did not take care of her boys and that Grandmother did not always respect her wishes with regard to rewarding the boys with snack food. Even affording considerable weight to both parents' opinions that visitation should not be awarded to Grandmother — as it must ( see infra) — the Court nonetheless believes that Grandmother has proven that she has standing to seek such visitation.
Jacob's Best Interests
Domestic Relations Law § 72 (1) must be interpreted to accord deference to a fit parent's decision as to whether to allow visitation with a grandparent ( Matter of E.S. v P.D. , 8 NY3d 150 ). Indeed, "the decision whether . . . an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision [ . . . ] becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination" ( Troxel v Granville, 530 US 57, 71). By requiring Grandmother to establish standing, the Court gave Mother and Father's decision to deny visitation the presumptive or special' weight required by Troxel ( Matter of Lynda D. v Stacy C. , 37 AD3d 1151 [4th Dept 2007]; see also Matter of Follum v Follum, 302 AD2d 861 [4th Dept 2003] ["[t]he issues of standing and best interests involve similar inquiries, and the resolution of both of those issues may be based on many of the same factors"]; Ziarno v Ziarno, 285 AD2d 793, 794 [3d Dept 2001], lv denied 97 NY2d 605 ["[t]he equitable circumstances standing question and the best interest of the child analysis entail inquiries which are similar — if not essentially indistinguishable — since the factors that are relevant in determining standing are also germane to the issue of best interest"]).
While the special weight that must be afforded to the parents' determination that visitation is not in Jacob's best interest creates a high hurdle for Grandmother, here, as in Matter of E.S. (8 NY3d 150), Grandmother surmounted it. Similar to Matter of E.S. v P.D. ( id.), where petitioner-grandmother lived with the child from the time he was almost four until he was seven years old, here, Grandmother lived with Jacob from his birth until he was almost one; he then lived across the street from Grandmother and continued to have daily contact with her until moving back in for an additional two years ( see also Matter of Varney v McKee , 44 AD3d 1178 [3d Dept 2007] [as petitioner-grandparent was the child's primary caretaker for approximately 16 months during the early stages of the child's life, and with it undisputed that the child formed a strong and loving bond with petitioner-grandparent, the court properly determined that visitation was in the child's best interests]; cf. Matter of Ziarno v Ziarno, 285 AD2d 793 [in the absence of any real existing relationship between petitioner-grandfather and child, parent's right to decide that visitation is not in the child's best interest is controlling]). Grandmother and Jacob clearly have a substantial relationship.
To determine whether visitation with Grandmother would be in Jacob's best interest, the Court must also consider the reasonableness of the parents' objections to Grandmother's access to the child, Grandmother's caregiving/nuturing skills and attitude towards the parents, the Law Guardian's assessment and the child's wishes ( Matter of E.S. v P.D., 8 NY3d at 161; see also Matter of Stellone v Kelly , 45 AD3d 1202 [3d Dept 2007]). Here, as in Matter of E.S., Jacob expressed fond memories of time spent with Grandmother and the Law Guardian advocated that visits were in his best interests ( see Matter of E.S. v P.D., id. at 158; Petitioner's Exhibits 1A — 1J). Grandmother testified at length as to her nuture of Jacob. She testified about spending time with the boys at the family cabin and exploring nature on different trips such as Stony Brook and Letchworth Parks. Both Grandmother and the boys recalled doing crafts together. Grandmother's friends, sisters and father all testified that the boys would run with outstretched arms to greet Grandmother. Her sisters testified that the boys sought out Grandmother as they would a mother and that she both cared and disciplined the boys when necessary. Grandmother testified that while not intending to criticize Mother's parenting, she did share articles concerning parenting with Mother and sometimes told Mother to watch the boys more closely; she testified she did so to put Jacob's interests first. She also tried to reestablish a relationship with Mother by calling her in July 2006 but Mother continued to thwart her effort.
Animosity between the parent and grandparent is not a proper reason for denial of visitation, without more ( Matter of Stellone v Kelly , 45 AD3d 1202 ; see also Steinhauser v Haas , 40 AD3d 863 [2d Dept 2007] [Family Court improvidently exercised its discretion in finding that it was not in the best interests of the children to have visitation with their maternal grandmother even though there was animosity between maternal grandmother and father because maternal grandmother enjoyed a meaningful relationship with the children]). In Stellone, the Court affirmed continued visits with petitioner-grandparent with counseling despite that both mother and child strenuously objected to visits.
Here, Jacob has experienced turmoil over the past couple of years with his family; not only did he experience the divorce of his parents when he was a toddler but more recently the demise of his grandparents' marriage. His relationship with his Grandmother was then abruptly ended right before his brother underwent difficulties resulting in his placement outside of the home. Jacob himself no longer lives with his Mother but with Grandfather. He deserves love and attention that only his Grandmother can give. Bi-monthly visits with Grandmother are thus in Jacob's best interest. Since Jacob does currently reside with Grandfather, the Court will fashion visits to maximize Grandmother's time with Jacob, without interfering with Mother's periods of visitation.
The Court is mindful that if the animosity between Grandmother-Mother and Grandmother-Grandfather respectively results in turmoil for Jacob that the visits must end ( see Matter of Wilson v McGlinchey, 2 NY3d 375 [change in circumstances warranting terminating petitioner-grandmother's visitation with child as visits were an "unmitigated disaster" and the child's best interest is advanced by shielding her from the animosity and dysfunction between parents and grandparents]; Matter of Smith v Smith, NYLJ, Oct. 19, 2007, at 29, col 3 [Fam Ct, Nassau County] [visitation between paternal grandparents and two girls whose father was killed in the terrorist attacks of September 11, 2001 was terminated where since visitation commenced there was a deterioration in the relationship between grandparents, the girls and their mother and visitation rendered the girls psychologically exhausted]). The Court ordered temporary visitation between Grandmother and Jacob: At the close of testimony, the parties indicated that at least one such visit had occurred and that it was a positive experience for Jacob. The Court trusts therefore that the adults in Jacob's life will act solely in Jacob's best interest, setting aside their differences and shielding Jacob from any animosity they might harbor.
NOW, THEREFORE, it is
ADJUDGED that Grandmother has standing and it is in Jacob's best interest that Grandmother be awarded visitation; and it is further
ORDERED that visits shall occur every other Friday. Grandmother shall pick up Jacob from his aftercare provider by 4:00 p.m. and return Jacob to his Mother's house by 8:00 p.m.
PURSUANT TO § 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.