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In re B. S. (Anonymous)

Supreme Court of New York, Second Department

March 22, 2017

In the Matter of B. S. (Anonymous), et al., petitioners-respondents, and B. T. (Anonymous), respondent-appellant, et al., respondent. Docket No. V-01293-09

          Camhi & Min LLC, New York, NY (Richard Min of counsel), for respondent-appellant.

          Brad Nacht, Brooklyn, NY, for petitioners-respondents.

          Karen P. Simmons, Brooklyn, NY (Janet Neustaetter and Barbara H. Dildine of counsel), attorney for the child.

          LEONARD B. AUSTIN, J.P. ROBERT J. MILLER HECTOR D. LASALLE FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         Appeal by the mother from an order of the Supreme Court, Kings County (IDV Part) (Esther M. Morgenstern, J.), dated February 26, 2015. The order, after a hearing, granted the petition of the grandmother and stepgrandfather pursuant to Family Court Act article 6 for visitation with the subject child.

         ORDERED that the order is modified, on the law and the facts, (1) by deleting the provision thereof granting the petition insofar as asserted by the stepgrandfather, and substituting therefor a provision dismissing the petition insofar as asserted by the stepgrandfather, (2) by deleting the provision thereof providing that the grandmother shall have visitation on the first and third weekend of each month, and substituting therefor a provision providing that the grandmother shall have visitation on the first weekend of the month, on alternating months (i.e., six weekends per year), from Friday after school at 3:00 p.m. to Sunday at 7:00 p.m., commencing in April 2017, and that during the months when the grandmother does not have weekend visitation, the grandmother shall have visitation on the first and third Saturday of the month from 10:00 a.m. to 7:00 p.m., (3) by deleting the provision thereof requiring the grandmother to give 30 days notice of her intent to exercise a one-week visitation during the summer school break, and substituting therefor a provision providing that if the parties cannot agree by May 1st of each year on which week of the summer school break that the grandmother shall have her one-week visitation, then this visitation shall take place during the first full week of July, from Sunday at 10:00 a.m. to the following Sunday at 7:00 p.m., (4) by deleting the provision thereof providing that the mother is responsible for picking up the child at the grandmother's home after overnight visitation, and substituting therefor a provision providing that the grandmother is responsible for providing the child with transportation for all court-ordered visitation, (5) by adding thereto a provision providing that the grandmother shall have a telephone call with the child at a minimum of once per week, at a mutually convenient time, and (6) by adding thereto a provision providing that if the grandmother's visitation on the first day of Hanukkah falls on Christmas Eve or Christmas Day, then this visitation shall take place on the day after Christmas, and that if the grandmother's visitation on the first day of Passover falls on Easter Sunday, then this visitation shall take place on the second day of Passover; as so modified, the order is affirmed, without costs or disbursements.

         The paternal grandmother and paternal stepgrandfather of the subject child commenced this proceeding pursuant to Family Court Act article 6 for visitation with the child. After a hearing, the Supreme Court granted the petition and set forth a visitation schedule. The mother appeals.

         As the mother correctly contends, since the paternal stepgrandfather is not the biological grandfather of the child or the legal grandfather by virtue of adoption, he is not the child's grandparent within the meaning of Domestic Relations Law § 72 and, therefore, he has no standing to seek visitation (see Matter of Chifrine v Bekker, 97 A.D.3d 574, 575; Matter of Faison v Nassau County Dept. of Social Servs., 74 A.D.3d 1339, 1339-1340; Matter of Jordan, 60 A.D.3d 764, 764-765; Matter of Gross v Siegman, 226 A.D.2d 724; Matter of Hantman v Heller, 213 A.D.2d 637). Accordingly, the petition for visitation should have been dismissed insofar as asserted by him.

         Where a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must undertake a two-part inquiry (see Matter of E.S. v P.D., 8 N.Y.3d 150, 157; Matter of Weiss v Orange County Dept. of Social Servs., 142 A.D.3d 505). First, the court must determine whether the grandparent has standing to petition for visitation based on the death of a parent or equitable circumstances (see Domestic Relations Law § 72[1]; Matter of E.S. v P.D., 8 N.Y.3d at 157; Matter of Weiss v Orange County Dept. of Social Servs., 142 A.D.3d 505). Here, the Supreme Court properly determined that the grandmother had standing to seek visitation based upon the equitable circumstances, including an ongoing and affectionate relationship between the grandmother and the child (see Matter of Emanuel S. v Joseph E., 78 N.Y.2d 178, 182; Matter of E.S. v P.D., 27 A.D.3d 757, 759, affd 8 N.Y.3d 150). Moreover, as a result of the father's unexpected death during the pendency of the visitation proceeding, the grandmother acquired automatic standing to seek visitation (see Matter of E.S. v P.D., 8 N.Y.3d at 157; Matter of Lynda D. v Stacy C., 37 A.D.3d 1151).

         "Upon demonstrating standing to seek visitation... a grandparent must then establish that visitation is in the best interests of the grandchild" (Matter of Hilgenberg v Hertel, 100 A.D.3d 1432, 1433). "Mere animosity between a parent and grandparent is not enough to deny visitation privileges to a grandparent" (Matter of E.S. v P.D., 27 A.D.3d at 759). Based on the totality of the circumstances, the Supreme Court properly determined that visitation with the grandmother was in the best interests of the child (see Matter of Seddio v Artura, 139 A.D.3d 1075, 1077). However, we find that the court's award of visitation, inter alia, on the first and third weekend of each month is disruptive to the child's home life and not in his best interests. Accordingly, we modify the order appealed from to provide that the grandmother shall have visitation with the child on the first weekend of the month, on alternating months (i.e., six weekends per year), from Friday after school at 3:00 p.m. to Sunday at 7:00 p.m., commencing in April 2017. Further, during the months when the grandmother does not have the child for weekend visitation, the grandmother shall have visitation with the child on the first and third Saturday of the month from 10:00 a.m. to 7:00 p.m.

         The Supreme Court's order also provides that, each summer school break, the child shall have visitation with the grandmother for one full week, which we agree is in the child's best interests. However, we delete the provision of the order requiring the grandmother to give 30 days notice of her intent to exercise this visitation, and substitute therefor a provision providing that, if the parties cannot agree by May 1st of each year on which week this visitation shall occur, then this visitation shall take place during the first full week of July, from Sunday at 10:00 a.m. to the following Sunday at 7:00 p.m.

         We additionally delete the provision of the order providing that the mother is responsible for picking up the child at the grandmother's home after overnight visitation, and substitute therefor a provision providing that the grandmother is responsible for providing the child with transportation for all court-ordered visitation. As set forth in the Supreme Court's order, the mother shall not schedule any activities for the child during the grandmother's court-ordered visitation times. While the order provides that the grandmother shall have regular telephone contact with the child, we modify the order by adding thereto a provision providing that the grandmother shall have a telephone call with the child at a minimum of once per week, at a mutually convenient time.

         We further agree with the mother that, to the extent the Supreme Court's award of visitation to the grandmother on certain Jewish holidays conflicts with the mother's desire to celebrate certain Christian holidays together with the child and her new family, it is not in the child's best interests. Accordingly, we modify the order to provide that if the grandmother's visitation on the first day of Hanukkah falls on Christmas Eve or Christmas Day, then this visitation shall take place on the day after Christmas, and that if the grandmother's visitation on the first day of Passover falls on Easter Sunday, then this visitation shall take place on the second day of Passover (see Matter of E.S. v P.D., 27 A.D.3d at 759).

         Contrary to the mother's contention, the Supreme Court providently exercised its discretion in declining to recuse itself, since the mother did not establish a basis for recusal pursuant to Judiciary Law § 14, and failed to set forth any proof of bias or prejudice on the part of the court (see Aebly v Lally, 140 A.D.3d 677, 678). The decision appealed from had a substantial basis in the evidence presented at the hearing, and the mother failed to establish that the court engaged in any ex parte communications. We note that the hearing ...


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