Tracy Laughlin for Kira Robinson, respondent.
Dolores Fogarty for Terry Davis, respondent.
Carmela Mone, Law Guardian.
Brian D. Burns, J.
Brenda Davis petitioned the Court for visitation of her granddaughter, Dakota. Mrs. Davis has had a close relationship with the girl, now two, from the moment of her birth to Mrs. Davis' son, Terry, and his then-girlfriend, Kira Robinson. However, at different points visitation has been interrupted because of various circumstances, especially the vagaries of Mrs. Robinson's relationships with Mr. Davis (now incarcerated) and with her new husband.
During the last visit between Mrs. Davis and Dakota, in December 2000, the child, who is lactose intolerant, broke out in hives. Subsequently, Mrs. Robinson has refused visitation for Mrs. Davis except in Mrs. Robinson's home. As a result, Mrs. Davis filed a petition for custody.
A hearing was held on March 15. Mrs. Davis, Terry Davis, and Mrs. Robinson all testified. Based on that testimony, and the case law discussed below, the Court makes the following findings of fact and reaches the following conclusions of law.
New York law explicitly authorizes grandparents to seek judicial assistance in obtaining visitation. (Domestic Relations Law § 72.) Under that statute, grandparents have standing to petition for visitation where either parent is deceased or " where circumstances show that conditions exist which equity would see fit to intervene." If the grandparent makes that hurdle, the court, in resolving the visitation dispute, " may make such directions as the best interest of the child may require" (id.).
However, the landscape changed with the United States Supreme Court's recent decision in Troxel v Granville (530 U.S. 57 ). There, the Court struck down a Washington statute providing that any person may petition the court for visitation at any time, and the court may order visitation if that is deemed in the best interests of the child. Although the statute itself dealt with any third-party request for visitation, the particular case happened to involve grandparents.
The Court held that the Washington statute unconstitutionally violated the substantive due process rights of parents to the care, custody, and control of their children. Specifically, the statute " ...