Opinion
No. 2023-03468 Docket Nos. V-2965-22 V-2966-22
12-04-2024
In the Matter of Teresa S. (Anonymous), petitioner- respondent, v. Christopher H. (Anonymous), et al., respondents; Kristen H. (Anonymous), et al., nonparty-appellants.
Ronna L. DeLoe, Larchmont, NY, attorney for the child nonparty-appellant Kristen H. Steven P. Forbes, Huntington, NY, attorney for the child nonparty-appellant Kassidy H.
Ronna L. DeLoe, Larchmont, NY, attorney for the child nonparty-appellant Kristen H.
Steven P. Forbes, Huntington, NY, attorney for the child nonparty-appellant Kassidy H.
FRANCESCA E. CONNOLLY, J.P. ANGELA G. IANNACCI BARRY E. WARHIT LAURENCE L. LOVE, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the children separately appeal from an order of the Family Court, Suffolk County (Catherine E. Miller, Ct. Atty. Ref.), dated March 6, 2023. The order, after a hearing, granted the grandmother's petition for visitation with the children and set a schedule for visitation.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the grandmother's petition for visitation is denied.
Domestic Relations Law § 72 "does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild" (Matter of Marchant v Marchant, 185 A.D.3d 1035, 1035-1036 [internal quotation marks omitted]; see Matter of E.S. v P.D., 8 N.Y.3d 150, 157). Thus, "when grandparents seek visitation under section 72(1), the court must undertake a two-part inquiry. First, the court must find standing based on death or equitable circumstances; and if 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 Marchant v Marchant, 185 A.D.3d at 1036 [brackets and internal quotation marks omitted]; see Matter of Noguera v Busto, 189 A.D.3d 1050, 1051). "[T]he courts should not lightly intrude on the family relationship against a fit parent's wishes" (Matter of E.S. v P.D., 8 N.Y.3d at 157). "Indeed, it is strongly presumed that a fit parent's decisions are in the child's best interests" (Matter of Quinn v Heffler, 102 A.D.3d 876, 876).
The determination of whether to permit visitation with a grandparent is generally within the sound discretion of the trial court based upon the best interests of the child (see Matter of Shimunov v Davydov, 179 A.D.3d 812, 813). However, this Court's authority in visitation matters is as broad as that of the trial court, and while the trial court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, this Court will not allow a visitation determination to stand where it lacks a sound and substantial basis in the record (see Matter of Cox v Cruz, 176 A.D.3d 1200, 1200-1201).
Here, the Family Court providently exercised its discretion in determining that the grandmother had standing to petition for visitation, and the children do not challenge that finding on appeal. However, the court's determination to grant the petition was an improvident exercise of discretion, because the record established that visitation with the grandmother was not in the best interests of the children. The record established that the parents' objections to visitation were well founded (see Matter of Quinn v Heffler, 102 A.D.3d 876). The grandmother engaged in conduct that showed that visitation was not in the best interests of the children. Accordingly, we reverse the order and deny the grandmother's petition.
CONNOLLY, J.P., IANNACCI, WARHIT and LOVE, JJ., concur.