In the Matter of a Proceeding for Grandparent Visitation Sheila T., Petitioner,
Arlene D. Mark D.C., Sr. Melissa S. (deceased), Respondents. In the Matter of a Proceeding for Grandparent Visitation Donald C., Petitioner,
Arlene D. Mark D.C., Sr. Melissa S. (deceased), Respondents.
Kallus., Esq. Strauss & Kallus, PLLC Attorney for
Respondent Arlene D.
J. McGaw., Esq. Attorney for Petitioners - Sheila T. and
Gambino., Esq. Attorney for Respondent - M.C. Sr.
Baum, Esq. Attorney for the Child.
S. POSNER, J.
are the paternal grandparents of M.C., Jr.. The child's
mother is deceased. The child's father is incarcerated
and pursuant to an order of protection issued by the
Integrated Domestic Violence Court (Posner, J., Acting
Supreme Court Justice) is prohibited from having contact with
the child except for written communication once per month
through the Department of Community and Family Services. This
order of protection is in effect until May 22, 2025.
child resides with his maternal grandmother, Arlene D.,
pursuant to an order of guardianship of this Court dated
January 16, 2015. By way of background, respondent D. had
previously been granted temporary guardianship from August 7,
2013 until October 30, 2013. She withdrew that petition and
the child was returned to the mother. Thereafter, on August
27, 2014 she re-filed for guardianship and was granted
temporary guardianship on October 8, 2014. The child has
remained in her care since that time.
petitions filed on June 6, 2016 and amended on September 1,
2016 the paternal grandparents seek visitation with the
child. In addition to the fact that the mother is deceased,
each alleges that they have an established relationship with
the child; they would see him several times a year at family
gatherings and holidays; prior to the mother's death she
would bring the child to see them; and, that since her death
they have made attempts to see the child which have been met
with resistence from the guardian.
the parties initially appeared before this Court on August 1,
2016, the paternal grandparents and the father were
unrepresented; the guardian appeared with counsel. The Court
assigned an attorney to represent the father and an attorney
for the child. Counsel for the guardian made an oral motion
to dismiss the pro se petitions, which the Court denied. The
paternal grandparents retained counsel and filed amended
petitions on September 1, 2016.
guardian now moves to dismiss the paternal grandparents'
petitions alleging that in the three and a half years the
child has resided with her they have not seen the child; that
they have failed to assert that they have an existing
relationship with him; and that the allegations contained in
the paternal grandparents' petitions regarding their
contact are not true; and, even if true, do not establish
that they have had recent contact with the child.
paternal grandparents and the father oppose the motions to
dismiss. The attorney for the child supports dismissal of the
grandparents' petitions, asserting in a letter that the
child does not have any independent recollection of the
paternal grandparents or of the allegations in their petition
determining these motions, the Court has taken judicial
notice of its own records, including prior orders and
proceedings involving this child (see Richardson,
Evidence §2-209, 11th edition; Matter of Lane v.
Lane, 68 A.D.3d 995');">68 A.D.3d 995 [2d Dept 2009]; Khatibi v.
Weill, 8 A.D.3d 485');">8 A.D.3d 485 [2d Dept 2004]).
'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  quoting
Matter of Brancato v. Federico, 118 A.D.3d 986');">118 A.D.3d 986, 986
; Matter of Fitzpatrick et al. v. Fitzpatrick et
al., 137 A.D.3d 784');">137 A.D.3d 784, 785 [2d Dept 2016]). First, the
court must determine that a grandparent has standing
(see Domestic Relations Law §72; Matter
of E.S. v. P.D., 8 N.Y.3d 150, 157 ; Matter of
Weis v. Orange County Dept. of Social Servs., 142 A.D.3d
505 [2d Dept 2016]). "[T]he burden of establishing
standing lies with the grandparent and it is 'conferred
by the court, in its discretion, only after it has examined
all the relevant facts' " (Matter of Roberts v.
Roberts, 81 A.D.3d 1117, 1118 [3d Dept 2011],
quoting Matter of Emanuel S. v. Joseph E.,
supra at 182). "Where either parent of the
grandchild has died, the grandparents have an absolute right
to standing" (Matter of Emanuel S. v. Joseph
E., supra at 181; see Domestic
Relations Law §72).
contrast to this automatic standing, when both parents of
children are alive a grandparent has the right to seek
visitation where, as a threshold matter, he or she can
establish circumstances in which "equity would see fit
to intervene, " i.e., that equitable circumstances exist
(Domestic Relations Law §72; see Matter of
Emanuel S. v. Joseph E., 78 N.Y.2d 178');">78 N.Y.2d 178, 181;
Matter of Seddio v. Artura, 139 A.D.3d 1075');">139 A.D.3d 1075 [2d Dept
2016] quoting Matter of Gray v. Varone, 101 A.D.3d
1122, 1123 [2d Dept 2012]). Only when a showing of equitable
circumstances has been made does a grandparent have standing
to seek visitation (see Matter of Seddio v. Artura,
supra at 1076 [citations omitted]; Matter of
Fitzpatrick v. Fitzpatrick, 137 A.D.3d 784');">137 A.D.3d 784 [2d Dept
2016][citations omitted]. In determining whether grandparents
have standing or whether circumstances exist in which
"equity would see fit to intervene", the essential
components to the inquiry are the "nature and extent of
the grandparent-grandchild relationship" (Matter of
Emanuel S. v. Joseph E., supra at 182) and
"the nature and basis of the parents' objection to
visitation" (Id. ...