Opinion
V-06253-07/15X
03-18-2016
In the Matter of a Proceeding Under Domestic Relations Law § 72 and Article 6 of the Family Court Act Tequila B., Petitioner, v. Dorice A., Jeffrey A., Respondents.
Tim Donaher, Public Defender, Monroe County (Odette J. Belton of counsel), for Tequila B. Dorice A., pro se Leah K. Bourne, Esq, for Jeffrey A. Maroun G. Ajaka, Esq., Attorney for the Child
Tim Donaher, Public Defender, Monroe County (Odette J. Belton of counsel), for Tequila B. Dorice A., pro se Leah K. Bourne, Esq, for Jeffrey A. Maroun G. Ajaka, Esq., Attorney for the Child Dandrea L. Ruhlmann, J.
Can a grandmother who enjoyed weekend visits with her granddaughter for seven years continue to visit her despite opposition from the girl's mother?
By Order to Show Cause dated May 20, 2015 Tequila B. (Mother) seeks both to end paternal grandmother Dorice A.'s (Grandmother's) visits with her daughter Unique B. (DOB: 2005), and sole custody. By cross-petition filed May 26, 2016, Grandmother seeks an extension of her visitation pursuant to Domestic Relations Law § 72 with her granddaughter. Although Mother opposes visits, the Court finds that Grandmother does have standing: Still the Court concludes it is contrary to Unique's best interests that Grandmother continue bi-monthly visits with her.
The Court heard testimony from only Grandmother and Mother. While Father supports Grandmother's petition, he did not participate or adduce evidence at trial. The Court also held an in camera interview with Unique on August 11, 2015 pursuant to Family Court Act § 664.
Standing
A grandparent of a child with two living parents has standing to seek visitation only if she can establish circumstances in which equity would see fit to intervene (Matter of Emanuel S. v Joseph E., 78 NY2d 178 [1991]). Although circumstances under which "equity would see fit to intervene" have not been sharply defined, the Court must consider both (1) the nature and extent of the grandparent-grandchild relationship (id. at 182; Matter of Varney v McKee, 44 AD3d 1178 [3d Dept 2007] [sufficient evidence evinced a relationship between petitioner-grandparent and the child "deserving the court's intervention," quoting Emanuel 78 NY2d at 182]); and (2) the nature and basis of the parents' objection to visitation (Matter of Lynda D. v Stacy C., 37 AD3d 1151, 1151 [4th Dept 2007], citing Matter of Follum v Follum, 302 AD2d 861 [4th Dept 2003], quoting Emanuel 78 NY2d at 182). While the equitable circumstances provision of the domestic relations statute is not intended to allow automatic standing to seek visitation (Matter of Wilson v McGlinchey, 2 NY3d 375, 381 [2004]), it is error to conclude that standing is permitted only in cases where there was a change in the status of the nuclear family, or interference with a derivative right, or some abdication of parental responsibility (Emanuel at 78 NY2d at 178).
Here Grandmother has established that equity sees fit to intervene and she has standing to petition for visitation with Unique based upon her extensive relationship with her granddaughter. It is undisputed that Unique has had visits with Grandmother for approximately seven (7) out of the first ten and one half (10-1/2) years of her life. Since the entry of a consent order on April 16, 2008 Grandmother has had alternate weekend visitation with her granddaughter, which was modified after hearing to require exchanges of the child at the Society for the Protection and Care of Children by Court order entered on September 14, 2009. The Court temporarily suspended visits during the pendency of this case.
Only Mother opposes Grandmother's visits with Unique. Father who otherwise did not participate at trial supports continued visitation with Grandmother since his current incarceration prevents his own consistent contact with his daughter. Grandmother and Unique have spent substantial time together. Even affording considerable weight to both parents' opposing opinions on whether visitation should continue to Grandmother - as it must (see infra) - the Court nonetheless believes that Grandmother has proven that she has standing to seek such visitation.
Unique's Best Interests and Change of Circumstances
Domestic Relations Law § 72 (1) must be interpreted to accord deference to a fit parent's decision as to whether to allow visitation with a grandparent (Matter of E.S. v P.D., 8 NY3d 150 [2007]). Indeed, "the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision . . . becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination" (Troxel v Granville, 530 US 57, 70 [2000]). The presumptive or "special weight" that must be afforded to Mother's determination that visitation is not in Unique's best interests creates a high hurdle for Grandmother, that Grandmother cannot surmount (cf. Lynda D. 37 AD3d at 1151; see also Follum 302 AD2d at 861] ["[t]he issues of standing and best interests involve similar inquiries, and the resolution of both of those issues may be based on many of the same factors"]; Matter of Ziarno v Ziarno, 285 AD2d 793, 794 [3d Dept 2001], lv denied 97 NY2d 605 [2001] [in the absence of any real existing relationship between petitioner-grandfather and child, parent's right to decide that visitation is not in the child's best interests is controlling]; Matter of Brendan N. v Arthur N., 72 AD3d 1138 [3d Dept 2010] [visitation with grandmother not in best interests of two year old child who spent most of life in foster care with current goal of adoption]).
To determine whether visitation with Grandmother would be in Unique's best interests, the Court must also consider the reasonableness of the parents' objections to Grandmother's access to the child, Grandmother's caregiving skills and attitude towards the parents, the Attorney for the Child's assessment and the child's wishes (E.S., 8 NY3d at 158; see also Matter of Stellone v Kelly, 45 AD3d 1202 [3d Dept 2007]). While only Mother opposes Grandmother's visitation with Unique, the primary basis of her objection is not just the strained relationship between Grandmother and Mother; but also her serious concerns arising from Grandmother's relationship and interactions with Unique.
Mother credibly testified that Grandmother's discipline consists of screaming and swearing and that she provides inadequate guardianship for Unique when she is in her care. Mother described a series of specific incidents: Unique's leg was severely injured by the shattering of a glass window, Unique returned home with bed bugs after visits and along with other incidents of minor injuries, Unique's two fingers were slammed in a car door. Mother too testified that she believes Grandmother speaks derogatively about her in front of Unique, since when Unique was just two (2) years old Grandmother using a vulgar name told Mother "she was not a good mother." During trial Grandmother who Mother overheard speaking loudly on the phone in the courthouse waiting area said "I'll see you on the streets...can't nobody keep me away from mine," later kissing Unique on the cheek commenting "oh I can't see my granddaughter no more." The Court also considers the somewhat erratic behavior of Grandmother at trial (cf. Matter of Caraballo v Colon, 9 AD3d 459 [2d Dept 2004]; Matter of Jeran PP, 6 AD3d 994 [3d Dept 2004] [courts affirmed family court decisions noting respondent's courtroom demeanor]; see also Matter of Destine G., 18 Misc 3d 1135(A) [Fam Ct Monroe County 2007] [court assesses the credibility, character and temperament of respondent/mother in a termination of parental rights proceeding]).
Grandmother testified at length as to her nurture of Unique, and all her seven (7) grandchildren; taking them to church and to visit extended family. Grandmother acknowledged that she is a strict disciplinarian and expects all her grandchildren to behave properly before she allows outings such as the park or Chuckie Cheese, but denied screaming or cursing.
While Grandmother testified that she and Mother were never on good terms, the collective evidence shows a tumultuous mother-daughter-in-law relationship peaking at the hospital's emergency room, when Unique's leg was cut severely by a shattered window. Grandmother herself admits she was hysterical because of the severity of Unique's injury. Mother testified their volatile encounter (after Unique's aunt not Grandmother called Mother to come) compelled her to ask the hospital to remove Grandmother. Mother now strenuously objects to Unique having any contact with Grandmother.
Animosity between the parent and grandparent is not a proper reason for denial of visitation, without more (Stellone 45 AD3d at 1202 [the Court affirmed continued visits with petitioner-grandparent with counseling despite that both mother and child strenuously objected to visits]; see also Steinhauser v Haas, 40 AD3d 863, 864 [2nd Dept 2007] ["Family Court improvidently exercised its discretion in finding that it was not in the best interests of the children to have any visitation with their maternal grandmother" even though there was animosity between maternal grandmother and father because maternal grandmother enjoyed a meaningful relationship with the children]). The Attorney for the Child argues that time spent with Grandmother is traumatic for Unique and that visits are no longer in her best interests (see E. S., 8 NY3d at 158). The Attorney for the Child does acknowledge that Unique shared tender moments and a bond with at least one paternal cousin, which is consistent with the Court's in camera with Unique.
The Court is mindful that since the animosity between Grandmother and Mother now has resulted in turmoil for Unique the visits must end (see Wilson, 2 NY3d at 379 [change in circumstances warranting terminating petitioner-grandmother's visitation with child as visits were an "unmitigated disaster" and the child's best interests is advanced by shielding her from the animosity and dysfunction between parents and grandparents]; Matter of Smith v Smith, NYLJ, Oct. 19, 2007, at 29, col 3 [Fam Ct, Nassau County] [visitation between paternal grandparents and two girls whose father was killed in the terrorist attacks of September 11, 2001 was terminated since after visitation commenced there was a deterioration in the relationship between grandparents, the girls and their mother, rendering the girls psychologically exhausted]). The totality of the evidence shows both that it is in Unique's best interests and that there has been a sufficient change of circumstances to warrant termination of Grandmother's visits (see Wilson, 2 NY3d at 379; Matter of Macri v Brown 133 AD3d 1333 [4th Dept 2015]).
While the Court temporarily suspended visits between Grandmother and Unique, Mother admits that she had not arranged with Grandmother contact between Unique and her cousins since this case began. The Court trusts therefore that the adults in Unique's life will act solely in Unique's best interests, setting aside their differences and shielding Unique from any animosity they might harbor, while ensuring Unique may visit occasionally with her paternal cousins.
Mother by Order to Show Cause also seeks sole custody of Unique, yet did not adduce sufficient evidence at trial to support her request. Father nonetheless is incarcerated currently, so aligned with Van Orman v Van Orman, 19 AD3d 1167 [4th Dept 2005] upon his release from jail his custodial rights may again be litigated. The Court thus grants Mother joint custody and primary residency of Unique.
NOW, THEREFORE, it is
ADJUDGED that Grandmother has standing and it is not in Unique's best interests that Grandmother be awarded visitation; and it is further
ORDERED that Mother is granted joint custody with primary residence of Unique; and it is further
ORDERED that Father's rights to custody of Unique shall be and hereby are reserved in accordance with Van Orman, 19 AD3d 1167.
Dated this 18th day of March, 2016 at Rochester, New York. ___________________________________ HON. DANDREA L. RUHLMANN FAMILY COURT JUDGE