New York Family Law Blog
D.E. v S.F. & T.E.
The motion to dismiss for lack of standing filed by the defendants, and dismissal of visitation rights filed by the plaintiff are denied. The plaintiff’s cross motion is granted in part and denied in part.
In February of 2018, the petitioner who lives in Nassau County filed a Visitation Petition in Nassau Family Court seeking visitation rights of her grandson. The matter was transferred to Kings Family Court in March of 2018, because the child lives in Brooklyn with his parents.
The parties first appeared in this court on July 2018. The plaintiff grandmother appeared pro se and the parents were represented by a lawyer. The matter has been hotly contested from the beginning. Counsel for the defendants said he would file a motion to dismiss the petition for visitation based on lack of standing.
This court appointed the Children’s Law Center to represent the 7-year-old child.
At the same time, the defendants moved to dismiss the current petition contending that equity shouldn’t intervene to allow standing with the plaintiff, because she has a tenuous relationship with the child and has been hostile to the defendants. She doesn’t honor the parent’s rules and has not taken action to actively pursue a relationship with the child.
In a cross-motion, the plaintiff moved for a motion to dismiss, requested that the matter be pursued anonymously in terms of the court documents, asked that the court grant an order for temporary visitation and impose sanctions on opposing counsel pursuant to 22 NYCRR 130.1 for pursuing a frivolous action.
All parties appeared for a hearing in August of 2018. Based on what transpired, a flurry of paperwork and motions ensued. After reviewing the paperwork, the court found for the plaintiff and the attorney for the child.
Domestic Relations Law 72(1) says that where parents reside in the state are deceased or conditions exist where equity would see fit, a grandparent may apply for visitation rights (Matter of Emanuel S v Joseph E 78 NY2d 178 [1991]. The New York Court of Appeals said that grandparent visitation rights trigger a two-part inquiry. First, the court must decide whether the grandparent has standing, and the second is to determine if the visitation is in the best interests of the child (Matter of ES v PD 8 NY3d 150, 157 [2007].
To determine standing, the court must examine the nature of the relationship and the reason for the parent’s rejection (Matter of Emanuel Supra at 182; Matter of Waverly v Gibson 79 AD3d 897, 899 [2nd Dept. 2010]. No full court hearing is required to do this.
Where the relationship has been frustrated by a parent, the grandparent must make an adequate effort to create one. If these efforts have been made, it is then considered an issue deserving the court’s consideration (Matter of V Brancato v Frederico 118 AD3d 986 [2nd Dept. 2014].
When considering the grandparent’s efforts, the court will look at what the grandparent could have reasonably done under the circumstances (Matter of Lipton 98 Add at 622).
In this instance, the defendant’s motion to dismiss fails because the plaintiff established adequate standing. It has been shown that prior to December 2015, the plaintiff enjoyed a healthy relationship with the child.
The parents acknowledge that the plaintiff was good to the child. The problem lies in how the plaintiff treated the defendants in the child’s presence. The parents expressed their concerns and both parties agreed to attend counseling.
The grandmother consistently would not adhere to the rules set out by the defendants when she had the child. Finally, in frustration, the defendants prohibited the grandmother from seeing the child.
The plaintiff then went to extraordinary efforts to see the child. The court found her actions more than reasonable. After exhausting all her options, she reluctantly brought the matter before the court.
The court says that an acrimonious relationship isn’t enough to deny visitation (Matter of Mastronardi v Milano-Granito 159 AD3d 907, 908 [2nd Dept. 2018]. This is particularly true here, where the parents are clearly disdainful of the plaintiff. The court has scheduled a hearing to determine if visitation with the plaintiff will be in the child’s best interest.
The court then discussed the plaintiff’s cross-motion where she moved to impose sanctions on the defendant’s lawyer for frivolous conduct. Frivolous conduct is that which is done to delay resolution to the matter or to simply harass another. Here, the defendant presented valid arguments that the plaintiff failed to prove otherwise.
Lastly, the plaintiff moved that the court papers reflect “anonymous” parties if the case is ever published. Here, the plaintiff has failed to prove that there was an overriding public interest to do so.
The court denies the plaintiff’s motion to dismiss for lack of standing. Plaintiff’s cross motions are granted in part, and another hearing is scheduled.
The court orders 6 observation and evaluation visits with the other parties to share the cost.