Opinion
2021–04548, 2021-04549 Docket Nos. V-18766-19, V-18767-19
10-12-2022
In the Matter of Denise KUSHNER, appellant, v. Lisa K. ASKINAZI, et al., respondents.
Christian P. Myrill, Jamaica, NY, for appellant. Wand & Goody, LLP, Huntington, NY (Jennifer H. Goody of counsel), for respondent Lisa K. Askinazi. Lauri Gennusa, Laurelton, NY, for respondent Scott E. Askinazi. Janis A. Parazzelli, Floral Park, NY, attorney for the children.
Christian P. Myrill, Jamaica, NY, for appellant.
Wand & Goody, LLP, Huntington, NY (Jennifer H. Goody of counsel), for respondent Lisa K. Askinazi.
Lauri Gennusa, Laurelton, NY, for respondent Scott E. Askinazi.
Janis A. Parazzelli, Floral Park, NY, attorney for the children.
VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, LARA J. GENOVESI, BARRY E. WARHIT, JJ.
DECISION & ORDER In related proceedings pursuant to Family Court Act article 6, the paternal grandmother appeals from (1) an order of the Family Court, Queens County (Lauren Norton Lerner, Ct. Atty. Ref.), dated April 29, 2021, and (2) an order of dismissal of the same court, also dated April 29, 2021. The order, without a hearing, granted the mother's motion to dismiss the petitions for grandparent visitation with the subject children. The order of dismissal dismissed the petitions with prejudice.
ORDERED that the appeals from so much of the orders as relate to the child Zoe A. are dismissed as academic, without costs or disbursements, as that child has reached the age of majority; and it is further,
ORDERED that the orders are affirmed insofar as reviewed, without costs or disbursements.
The petitioner (hereinafter the grandmother) is the paternal grandmother of the subject children. In September 2019, the grandmother filed petitions seeking grandparent visitation with the children. The Family Court granted the mother's motion to dismiss the petitions without a hearing. The grandmother appeals.
Initially, the appeals from so much of the orders as relate to the child Zoe A. must be dismissed as academic, as that child has reached the age of majority and can no longer be the subject of a custody or visitation order (see Matter of Rodriguez v. Sabbat, 185 A.D.3d 938, 940, 128 N.Y.S.3d 542 ).
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, 128 N.Y.S.3d 656 [internal quotation marks omitted]; 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 ). 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, 128 N.Y.S.3d 656 [brackets and internal quotation marks omitted]; see Matter of Noguera v. Busto, 189 A.D.3d 1050, 1051, 133 N.Y.S.3d 884 ).
" ‘Standing [based on equitable circumstances] should be conferred by the court, in its discretion, only after it has examined all the relevant facts’ " ( Matter of Kelly v. Cairo, 198 A.D.3d 964, 964, 157 N.Y.S.3d 39, quoting Matter of Noguera v. Busto, 189 A.D.3d at 1051, 133 N.Y.S.3d 884 [internal quotation marks omitted]). "[A]n essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship" ( 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 Noguera v. Busto, 189 A.D.3d at 1051, 133 N.Y.S.3d 884 ). "In cases where the relationship between the grandparent and grandchild has been frustrated by a parent, the grandparent must show, inter alia, that he or she has made a sufficient effort to establish a relationship with the child, so that the court perceives the matter as one deserving the court's intervention" ( Matter of Kelly v. Cairo, 198 A.D.3d at 965, 157 N.Y.S.3d 39 [brackets and internal quotation omitted]; see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ). "[T]he sufficiency of the grandparent's efforts is measured against what they could have reasonably done under the circumstances" ( Matter of Kelly v. Cairo, 198 A.D.3d at 965, 157 N.Y.S.3d 39 [internal quotations marks omitted]; see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ). Moreover, a court should consider "the nature and basis of the parents’ objection to visitation" in deciding the standing question ( Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ). "A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers" ( Matter of Kelly v. Cairo, 198 A.D.3d at 965, 157 N.Y.S.3d 39 [internal quotation marks omitted]; see Matter of Sands v. Sands, 174 A.D.3d 628, 630, 101 N.Y.S.3d 877 ).
Here, equitable considerations do not warrant judicial intervention to confer standing upon the grandmother. Although the petitions alleged that the grandmother had a relationship with the child E.A. from his birth until 2015, it is undisputed that the last time the grandmother saw the child was in 2015, and that she took no steps to contact him during the four years prior to commencing these proceedings (see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; Matter of Kelly v. Cairo, 198 A.D.3d at 965, 157 N.Y.S.3d 39 ; Matter of Rodriguez v. ACS–Kings, 169 A.D.3d 693, 694, 91 N.Y.S.3d 706 ). Moreover, the mother objected to visitation with the grandmother because E.A. indicated that he did not want a relationship with her.
Accordingly, the Family Court properly granted, without a hearing, that branch of the mother's motion which was to dismiss the petitions insofar as they related to the child E. A., and dismissed the proceedings insofar as they pertained to that child.
BRATHWAITE NELSON, J.P., MILLER, GENOVESI and WARHIT, JJ., concur.