Opinion
2015-04-08
In the Matter of Roxanne TROIANO, et al., appellants, v. Edmund J. MAROTTA, et al., respondents.
Law Offices of K.D. Rothman, P.C., Nanuet, N.Y. (Kalman D. Rothman of counsel), for appellants. Mark Diamond, New York, N.Y., for respondent Renee Troiano.
Law Offices of K.D. Rothman, P.C., Nanuet, N.Y. (Kalman D. Rothman of counsel), for appellants. Mark Diamond, New York, N.Y., for respondent Renee Troiano.
Harvey A. Eilbaum, New City, N.Y., attorney for the children.
PETER B. SKELOS, J.P., RUTH C. BALKIN, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.
Appeal from an order of the Family Court, Rockland County (Sherri L. Eisenpress, J.), entered December 13, 2013. The order denied a petition pursuant to Family Court Act article 6 for grandparent visitation.
ORDERED that the order is affirmed, without costs or disbursements.
A court determining a petition for grandparent visitation must undertake a two-part inquiry. First, it must determine whether the grandparent has standing to petition for visitation rights ( seeDomestic Relations Law § 72[1]; 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 Feldman v. Torres, 117 A.D.3d 1048, 1048, 986 N.Y.S.2d 565). If the grandparent establishes standing, the court then must determine whether visitation is in the best interests of the subject child ( 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 Pinsky v. Botnick, 105 A.D.3d 852, 854, 962 N.Y.S.2d 668).
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] ), “the essential components to the inquiry are the ‘nature and extent of the grandparent-grandchild relationship’ and ‘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 178, 182, 573 N.Y.S.2d 36, 577 N.E.2d 27). “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 Lipton v. Lipton, 98 A.D.3d 621, 622, 949 N.Y.S.2d 501, 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; see Matter of Brancato v. Federico, 118 A.D.3d 986, 987, 988 N.Y.S.2d 678). “ ‘The evidence necessary will vary in each case but what is required of grandparents must always be measured against what they could reasonably have done under the circumstances' ” ( Matter of Bender v. Cendali, 107 A.D.3d at 982, 968 N.Y.S.2d 175, quoting Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 183, 573 N.Y.S.2d 36, 577 N.E.2d 27).
Here, the Family Court properly determined that the grandfather lacked standing to seek visitation with the grandchildren ( see Matter of Lipton v. Lipton, 98 A.D.3d at 622, 949 N.Y.S.2d 501). The grandfather failed to demonstrate that the mother frustrated his visitation with the grandchildren ( see Matter of Bender v. Cendali, 107 A.D.3d at 982, 968 N.Y.S.2d 175). Indeed, it is undisputed that the mother had asked the grandfather to visit with the grandchildren, and that he only refused because the mother did not want the grandmother to accompany him.
While the grandmother had standing to seek visitation with the grandchildren, there is a sound and substantial basis in the record supporting the Family Court's conclusion that visitation with the grandmother is not in the best interests of the grandchildren ( see Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 382, 779 N.Y.S.2d 159, 811 N.E.2d 526; Matter of Decoursy v. Poplawski, 61 A.D.3d 974, 974, 878 N.Y.S.2d 750).
The grandparents' remaining contentions either are without merit or are not properly before this Court.
Accordingly, the Family Court properly denied the grandparents' petition for visitation.