Opinion
2014/06771
02-20-2015
John R. Valerio, Petitioner, v. Elisha Schumacher & DAVID SCHUMACHER, Respondents.
Chad M. Hummel, Esq. Attorney for Plaintiff Rochester, New York Kristina Karle, Esq. Attorney for Defendant Rochester, New York Deborah Indivino, Esq. Attorney for Child(ren) Spencerport, New York
Chad M. Hummel, Esq.
Attorney for Plaintiff
Rochester, New York
Kristina Karle, Esq.
Attorney for Defendant
Rochester, New York
Deborah Indivino, Esq.
Attorney for Child(ren)
Spencerport, New York
Richard A. Dollinger, J.
In this matter, maternal grandfather has applied to this court for an Order of Visitation to be granted so he may have visitation with his two grandchildren, ages fourteen (14) and twelve (12). The Respondents are the parents of these two children. They oppose any such visitation, and now move to dismiss the grandfather's petition.
The facts here are often disputed, but one thing is clear, for a majority of these children's lives they had a substantial and loving relationship with their grandfather. While there is some dispute as to the level of involvement, it is clear that for a large portion of their lives, these children saw their grandfather on, at least, a weekly basis. However, over the last three years the relationship has changed significantly and there has been little contact. The reasons behind this are again disputed, but critical to the court's decision.
When grandparents seek visitation under the grandparent visitation statute (DRL § 72 [1]), the court must undertake a two-part inquiry. The court must first find standing based on death of the grandparent's child or equitable circumstances. 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[ren]. Matter of E.S. v P.D., 8 NY3d 150 (2007); Matter of Emanuel S. v Joseph E., 78 NY2d 178 (1991). In looking at the first prong of this two-part test, with both parents alive and well, the grandfather must then establish "equitable circumstances" to have standing.
Prior to 1975, visitation was available only when one of the parents had died. "Grandparents had no independent standing to maintain the proceeding; their rights were derived entirely from the deceased parent." Emanuel S. at 181. In 1975 the statute was amended to expand standing to "where circumstances show that conditions exist which equity would see fit to intervene." DRL § 72. The amended statute "rests on the humanitarian concern that visits with a grandparent are often a precious part of a child's experience and there are benefits which devolve upon the grandchild...which he cannot derive from any other relationship." Emanuel S. at 181, quoting Ehrlich v Ressner, 55 AD2d 953 (2d Dept. 1977) quoting Mimkon v Ford, 66 NJ 426 (Sup. Ct. NJ 1977); see also Matter of Vacula v Blume, 53 AD2d 633 (2d Dept. 1976).
Here, it seems unquestioned that for the majority of their lives these two children had substantial relationship with their grandfather, which, for a variety of disputed reasons was severed, almost completely, over the last three years. In Emanuel S., the court states:
[A]n essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship. It is not sufficient that the grandparents allege love and affection for their grandchild. They must establish a sufficient existing relationship with their grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court's intervention. If the grandparents have done nothing to foster a relationship or demonstrate their attachment to the grandchild, despite opportunities to do so, then they will be unable to establish that conditions exist where equity would see fit to intervene.'
Emanuel S. at 182-183 (emphasis added); see also Couse v Couse, 72 AD3d 1231 (3d Dept. 2010) (where parents interfere or frustrate efforts, sufficient effort by the grandparent must be established); Hilgenberg v Hertel, 100 AD3d 1432 (4th Dept. 2012) (grandfather demonstrated long-standing and loving relationship with grandchild, and thus had standing to seek visitation).
The question here then is whether the grandfather did enough during this three-year hiatus to meet the "sufficient effort" standard. The courts provide further guidance on this vital detail. In Couse the court states that the grandparent "must show that they did everything possible under the circumstances to establish such a relationship." Couse at 1232. In Emanuel S., the standard is less strenuous: "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." Emanuel S. at 183.
Three years is a relatively long time when applying to the life of a fourteen and twelve year old child. There are allegations on both sides regarding what went on during this time - and prior. The grandfather paints the picture that he was very involved in his grandchildren's lives for over ten years. He often provided daycare and transportation, attended sporting events, and went on vacations with the entire family. Then when things went sour, he attempted to keep in contact through texting, cards, and still attended sporting events. He surmises that he became estranged as a result of his divorce from his wife (the maternal grandmother). The parents allege that the grandfather has exaggerated his involvement during those initial ten-plus years. They claim that it was the grandfather's about-face behavior three years ago that caused the disconnect between not only the grandchildren, but themselves too. They describe the grandfather as becoming mentally unstable and financially irresponsible. They do admit that he did attempt to see the grandchildren during the three-year period, although they describe the effort as limited, at best.
The court is left with a difficult decision involving what can and should be a precious relationship. There is a strong presumption that a fit parent's decisions are in the child's best interests. Matter of E.S. v P.D., 8 NY3d 150 (2007); LoPresti v Lopresti, 40 NY2d 522 (1976). However, that presumption, while heavy, does not automatically extinguish the grandparent's visitation rights. This matter is full of conflicting allegations which make the decision even more difficult. In the end, it seems clear that the grandfather has alleged enough to, at the very least, survive a motion to dismiss. Regarding the crucial question of whether the grandfather made a "substantial effort" to establish the relationship with his grandchildren over the last three-years, the court, based on limited information, rules that he did, especially considering the circumstances - again, at least enough to survive this motion to dismiss. As a result, the grandfather is determined to have standing at this point in the proceeding and the court orders a hearing to determine the best interests of the children.
The court dismisses the Respondent's motion to dismiss the petition on all grounds (including the procedural/service issue) This opinion constitutes the decision of the court. Pleas submit an order on notice.
Dated:February 20, 2015__________________________________
Richard A. Dollinger, A.J.S.C.