Opinion
2015-05-27
In the Matter of Naomi MOSKOWITZ, et al., appellants, v. Rachel MOSKOWITZ, et al., respondents.
Joel Borenstein, Brooklyn, N.Y., for appellants. Deana Balahtsis, New York, N.Y. (Meghan R. Buckwalter of counsel), for respondent Rachel Moskowitz.
Joel Borenstein, Brooklyn, N.Y., for appellants. Deana Balahtsis, New York, N.Y. (Meghan R. Buckwalter of counsel), for respondent Rachel Moskowitz.
Eli Yeger, Brooklyn, N.Y., for respondent Samuel Moskowitz (no brief filed).
Sharyn M. Duncan, Brooklyn, N.Y., attorney for the children Blima Moskowitz, Jacob Moskowitz, and Dina Moskowitz.
Fredericka Bashir, Brooklyn, N.Y., attorney for the children Hersh Moskowitz, Aron Moskowitz, and Moshe Moskowitz (no brief filed).
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
Appeal from an order of the Family Court, Kings County (Daniel Turbow, J.), dated April 3, 2014. The order, without a hearing, denied the petition pursuant to Domestic Relations Law § 72(1) for grandparent visitation with the six subject children and dismissed the proceeding.
ORDERED that the order is affirmed, without costs or disbursements.
“When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry” ( Matter of Brancato v. Federico, 118 A.D.3d 986, 986, 988 N.Y.S.2d 678 [internal quotation marks and citation omitted] ). “First, it must find that the grandparent has standing, based on, inter alia, equitable considerations” ( id. at 986, 988 N.Y.S.2d 678 [internal quotation marks and citation omitted] ). “If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child” ( Matter of Gray v. Varone, 101 A.D.3d 1122, 1123, 956 N.Y.S.2d 573).
“In considering whether a grandparent has standing to petition for visitation based upon ‘circumstances show[ing] that conditions exist which equity would see fit to intervene’ (Domestic Relations Law § 72 [1] ), ‘an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,’ among other factors” ( Matter of Lipton v. Lipton, 98 A.D.3d 621, 621, 949 N.Y.S.2d 501, quoting Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 182, 573 N.Y.S.2d 36, 577 N.E.2d 27). Additionally, the court must consider “ ‘the nature and basis of the parents' objection to visitation’ ” ( Matter of Bender v. Cendali, 107 A.D.3d 981, 982, 968 N.Y.S.2d 175, quoting 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 Roberts v. Roberts, 81 A.D.3d 1117, 1118, 917 N.Y.S.2d 370).
Here, the Family Court properly denied the grandparents' petition for visitation and dismissed the proceeding, without a hearing, based on their lack of standing. The Family Court, considering all of the relevant circumstances of this case, properly found that this is not a matter in which it would be equitable to confer standing upon the grandparents ( seeDomestic Relations Law § 72[1]; Matter of Lipton v. Lipton, 98 A.D.3d 621, 949 N.Y.S.2d 501; Matter of Marks v. Cascio, 24 A.D.3d 556, 808 N.Y.S.2d 261).
The Family Court further concluded that, in any event, visitation would not be in the children's best interests. The record also supports this finding ( see Matter of Feldman v. Torres, 117 A.D.3d 1048, 986 N.Y.S.2d 565; Matter of Tolbert v. Scott, 42 A.D.3d 548, 840 N.Y.S.2d 112; Matter of DiBerardino v. DiBerardino, 229 A.D.2d 539, 645 N.Y.S.2d 848; Matter of Coulter v. Barber, 214 A.D.2d 195, 632 N.Y.S.2d 270).