The People, etc., ex rel. Karen Accomando, on behalf of J. A. A. (Anonymous) and G. A. (Anonymous), respondent,
Elizabeth Kirschner-Melendez, appellant. Index No. 3556/16
Submitted - October 15, 2019
Heather A. Fig, Bayport, NY, for appellant.
S. Zimmer, Commack, NY, for respondent.
Feldman, Uniondale, NY, attorney for the children.
S. ROMAN, J.P. ROBERT J. MILLER JOSEPH J. MALTESE ANGELA G.
DECISION & ORDER
habeas corpus proceeding to obtain visitation rights with
respect to the subject children pursuant to Domestic
Relations Law § 72(1), Elizabeth Kirschner-Melendez
appeals from an order of the Supreme Court, Suffolk County
(Glenn A. Murphy, J.), dated October 17, 2017. The order,
after a hearing, granted the petition.
that the order is reversed, on the facts and in the exercise
of discretion, without costs or disbursements, and the
petition for grandparent visitation is denied.
subject children were born in October 2011 and April 2013,
respectively. The parental rights of both biological parents
were subsequently terminated, and the children were adopted
by the appellant in or around 2015. In April 2016, the
petitioner, the children's paternal grandmother,
commenced this habeas corpus proceeding to obtain visitation
rights with respect to the children pursuant to Domestic
Relations Law § 72(1). The appellant opposed the
petition, arguing, among other things, that the petitioner
lacked standing to seek visitation, and that contact with the
petitioner would be detrimental to the children's best
interests. After a hearing, the Supreme Court granted the
petition. We reverse.
a grandparent seeks visitation pursuant to Domestic Relations
Law § 72(1), the court must make a two-part
inquiry" (Matter of Gray v Varone, 101 A.D.3d
1122, 1123; see Matter of Rodriguez v ACS-Kings, 169
A.D.3d 693, 693-694; Matter of Brancato v Federico,
118 A.D.3d 986). First, the court must find that the
grandparent has standing, based on, inter alia, equitable
considerations (see Matter of E.S. v P.D., 8 N.Y.3d
150, 157; Matter of Moskowitz v Moskowitz, 128
A.D.3d 1070). If the court concludes that the grandparent has
established standing to petition for visitation, it must then
determine if visitation is in the best interests of the child
(see Matter of Mastronardi v Milano-Granito, 159
A.D.3d 907, 907; Matter of Gray v Varone, 101 A.D.3d
while the petitioner demonstrated that she had standing to
seek visitation with the children (see Matter of Gray v
Varone, 101 A.D.3d at 1123), the Supreme Court's
determination that visitation with the petitioner was in the
best interests of the children is not supported by a sound
and substantial basis in the record. The record reflects that
the petitioner failed to acknowledge the issues that led to
the termination of the parental rights of the biological
parents. Among other things, the petitioner refused to accept
that the biological mother failed a drug screening test at
the time of the birth of the younger child, a fact which the
petitioner attributed instead to a purported switch in the
hospital records. Additionally, the petitioner believed that
the removal and adoption of the children was part of a
conspiracy involving the legal system or government. In this
regard, there was testimony that the petitioner believed,
without basis, that her car had been wiretapped.
the record indicates that the petitioner allowed the
biological father to have contact with the older child in
violation of an order of protection prohibiting him from
having contact with the child. The appellant also testified
that the petitioner made statements indicating that she would
permit the biological father to have contact with the
children. Considering all of the circumstances, we find that
visitation with the petitioner would not be in the
children's best interests (see Matter of Quinn v
Heffler, 102 A.D.3d 876; Matter of D'Alessandro
v D'Allesandro, 283 A.D.2d 429).
remaining contention of the appellant and the attorney for