Opinion
2018–13208 Docket Nos. V–3890–18, V–3891–18, V–3893–18, V–3894–18
07-10-2019
In the Matter of Alan J. SANDS, Appellant, v. Joshua Ira SANDS, Respondent. (Proceeding No. 1) In the Matter of Alan J. Sands, Appellant, v. Susie Sands, Respondent. (Proceeding No. 2)
Davidoff Hutcher & Citron, LLP, New York, N.Y. (Leslie F. Barbara and Judith Ackerman of counsel), for appellant. Kahn & Goldberg, LLP, New York, N.Y. (Michele Kahn of counsel), for respondents.
Davidoff Hutcher & Citron, LLP, New York, N.Y. (Leslie F. Barbara and Judith Ackerman of counsel), for appellant.
Kahn & Goldberg, LLP, New York, N.Y. (Michele Kahn of counsel), for respondents.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.
DECISION & ORDER ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Westchester County, for a hearing on the issue of the paternal grandfather's standing to seek grandparent visitation and for a new determination thereafter of the parents' motion to dismiss the petitions.
The petitioner (hereinafter the grandfather) is the paternal grandfather of the subject children. In April 2018, the grandfather filed petitions pursuant to Domestic Relations Law § 72(1), seeking grandparent visitation with the children. The Family Court, in effect, granted the parents' motion to dismiss the grandfather's petitions without a hearing. The grandfather appeals.
"When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry" ( Matter of Moskowitz v. Moskowitz , 128 A.D.3d 1070, 1070, 9 N.Y.S.3d 674 [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 ; Matter of Broomfield v. Evans , 140 A.D.3d 748, 748, 30 N.Y.S.3d 915 ; Matter of Gray v. Varone , 101 A.D.3d 1122, 1123, 956 N.Y.S.2d 573 ). "First, it must find that the grandparent has standing, based on, inter alia, equitable considerations" ( Matter of Gray v. Varone , 101 A.D.3d at 1123, 956 N.Y.S.2d 573 ; see Domestic Relations Law § 72[1] ; Matter of Moskowitz v. Moskowitz , 128 A.D.3d at 1070, 9 N.Y.S.3d 674 ). "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 at 1123, 956 N.Y.S.2d 573 ; see Matter of Broomfield v. Evans , 140 A.D.3d at 748, 30 N.Y.S.3d 915 ).
"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 ; see Matter of Moskowitz v. Moskowitz , 128 A.D.3d at 1070, 9 N.Y.S.3d 674 ). In cases where such a relationship 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 Emanuel S. v. Joseph E. , 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; see Matter of Lipton v. Lipton , 98 A.D.3d at 621–622, 949 N.Y.S.2d 501 ).
In assessing the sufficiency of the grandparent's efforts, "what is required of grandparents must always be measured against what they could reasonably have done under the circumstances" ( Matter of Emanuel S. v. Joseph E. , 78 N.Y.2d at 183, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; see Matter of Lipton v. Lipton , 98 A.D.3d at 622, 949 N.Y.S.2d 501 ). In addition to these considerations, "the nature and basis of the parents' objection to visitation are among the several circumstances which should be considered by courts 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 ). Although "animosity coupled with family dysfunction may provide a basis for denying visitation rights," the "existence of animosity between the parties alone" cannot provide such a basis ( Matter of DiBerardino v. DiBerardino , 229 A.D.2d 539, 540, 645 N.Y.S.2d 848 ; see Matter of E.S. v. P.D. , 8 N.Y.3d at 157, 831 N.Y.S.2d 96, 863 N.E.2d 100 ; Matter of Gray v. Varone , 101 A.D.3d at 1123, 956 N.Y.S.2d 573 ). "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 Broomfield v. Evans , 140 A.D.3d at 749, 30 N.Y.S.3d 915 ; see CPLR 409[b] ; Matter of Moskowitz v. Moskowitz , 128 A.D.3d at 1070, 9 N.Y.S.3d 674 ).
Contrary to the Family Court's determination, the allegations in the petitions, the evidence submitted by the parents in support of their motion to dismiss the petitions, and the evidence submitted by the grandfather in opposition to the parents' motion gave rise to factual issues which must be resolved at a hearing. Those factual issues include, among other things, the nature and extent of the grandparent-grandchild relationship, the grandfather's efforts to establish and maintain a relationship with the children, and the parents' alleged attempts to frustrate the grandparent-grandchild relationship.
Accordingly, the Family Court should not have, in effect, granted the parents' motion to dismiss the petitions for lack of standing without first conducting a hearing (see Matter of Ferguson v. Weaver , 165 A.D.3d 1397, 1399, 86 N.Y.S.3d 274 ; Matter of Brancato v. Federico , 118 A.D.3d 986, 987, 988 N.Y.S.2d 678 ).
CHAMBERS, J.P., ROMAN, HINDS–RADIX and LASALLE, JJ., concur.