Opinion
May 25, 2010.
In a proceeding pursuant to Family Court Act article 6 for grandparent visitation, the grandmother appeals from an order of the Family Court, Kings County (Feldman, J.H.O.), dated February 24, 2009, which, after a hearing, dismissed the petition.
Lisa Lewis, Brooklyn, N.Y., for appellant.
Pauline E. Braun, Brooklyn, N.Y., for respondents.
Karen P. Simmons, Brooklyn, N.Y. (Heather L. Kalachman and Barbara H. Dildine of counsel), attorney for the child.
Before: MASTRO, J.P., LEVENTHAL, LOTT and AUSTIN, JJ.
ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Kings County, for a new hearing consistent herewith, and thereafter, a new determination of the petition.
"Although grandparents have no absolute or automatic right to visitation in New York State, Domestic Relations Law § 72(1) allows them to apply for visitation rights if the circumstances are such that 'equity would see fit to intervene'" ( Matter of Decoursy v. Poplawski, 61 A.D.3d 974, 974, 878 N.Y.S.2d 750). Whether such visitation should be awarded lies within the discretion of the Family Court ( see Lo Presti v. Lo Presti 40 N.Y.2d 522, 527, 387 N.Y.S.2d 412, 355 N.E.2d 372; Matter of Ehrlich v. Ressner, 55 A.D.2d 953, 391 N.Y.S.2d 152), and must be determined in light of the grandchild's best interests ( 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; Lo Presti v. Lo Presti, 40 N.Y.2d at 527, 387 N.Y.S.2d 412, 355 N.E.2d 372; Matter of Decoursy v. Poplawski, 61 A.D.3d at 974, 878 N.Y.S.2d 750).
Under the particular circumstances of this case, the Family Court improperly dismissed the grandmother's petition for visitation with the subject grandchild (hereinafter the child) without first conducting a full inquiry into the matter to determine whether such visitation was in the child's best interests ( see generally Matter of Machado v. Del Villar, 299 A.D.2d 361, 751 N.Y.S.2d 489). The Family Court terminated the hearing held on the petition without conducting an in camera interview with the child ( cf. Matter of E.S. v. P.D., 27 A.D.3d 757, 758, 815 N.Y.S.2d 607, affd. 8 N.Y.3d 150, 831 N.Y.S.2d 96, 863 N.E.2d 100) and without permitting the grandmother to complete her presentation. Additionally, the Family Court failed to admit into evidence a forensic evaluation report prepared by a clinical psychologist at the Family Court's direction ( see Matter of Richmond v. Perez, 38 A.D.3d 782, 784, 832 N.Y.S.2d 618; see also Matter of Chaya S. v. Frederick Herbert L., 266 A.D.2d 219, 697 N.Y.S.2d 679; Matter of Youngblood v. Amrhein, 216 A.D.2d 475, 476, 628 N.Y.S.2d 386), and did not give the parties an opportunity to examine the forensic expert. Finally, in determining that visitation with the grandmother was not in the child's best interests, the Family Court failed to consider whether any alternatives to unsupervised visitation, such as supervised visitation and/or limited telephone contact, would be in the child's best interests ( see Matter of Fletcher v. Fletcher, 29 A.D.3d 908, 909, 815 N.Y.S.2d 269).
Accordingly, we remit the matter to the Family Court, Kings County, for a new hearing and, thereafter, a new determination of the petition. We express no opinion with respect to what the ultimate determination of the Family Court should be.