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In re Proceeding for Grandparent Visitation Sheila T.

Family Court, Dutchess County

January 31, 2017

In the Matter of a Proceeding for Grandparent Visitation Sheila T., Petitioner,
v.
Arlene D. Mark D.C., Sr. Melissa S. (deceased), Respondents. In the Matter of a Proceeding for Grandparent Visitation Donald C., Petitioner,
v.
Arlene D. Mark D.C., Sr. Melissa S. (deceased), Respondents.

          Harvey Kallus., Esq. Strauss & Kallus, PLLC Attorney for Respondent Arlene D.

          Ronald J. McGaw., Esq. Attorney for Petitioners - Sheila T. and Donald C.

          Thomas Gambino., Esq. Attorney for Respondent - M.C. Sr.

          Leslie Baum, Esq. Attorney for the Child.

          JOAN S. POSNER, J.

         Petitioners 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.

         The 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.

         By 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.

         When 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.

         The 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.

         The 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 [1].

         In 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 [2015] quoting Matter of Brancato v. Federico, 118 A.D.3d 986');">118 A.D.3d 986, 986 [2014]; 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[1]; Matter of E.S. v. P.D., 8 N.Y.3d 150, 157 [2007]; 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[1]).

         In 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[1]; see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178');">78 N.Y.2d 178, 181[1991]; 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. ...


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