Virginia HH. v. Elijah II.

211 A.D.3d 1201

179 N.Y.S.3d 803

In the Matter of VIRGINIA HH., Respondent, et al., Petitioner,

v.ELIJAH II. et al., Appellants.

533234

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 19, 2022

Decided and Entered: December 8, 2022

Larisa Obolensky, Delhi, for Elijah II., appellant.

Lisa K. Miller, McGraw, for Melanie II., appellant.

Virginia HH., Friendsville, Pennsylvania, respondent pro se.

Andrea J. Mooney, Ithaca, attorney for the children.

Before: Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Ceresia, JJ.

MEMORANDUM AND ORDER

Ceresia, J. Appeal from an order of the Family Court of Broome County (Mark H. Young, J.), entered March 31, 2021, which granted petitioners’ application, in a proceeding pursuant to Family Ct Act article 6, for visitation with respondents’ children.

Respondent Elijah II. (hereinafter the father) and respondent Melanie II. (hereinafter the mother) are the divorced parents of a son and a daughter (born in 2015 and 2018, respectively). Petitioner Virginia HH. (hereinafter the grandmother) and petitioner Leonard HH. are the children's maternal grandparents. In September 2019, the grandparents filed a petition for visitation with the children. A hearing was held in November 2020 and January 2021, after which Family Court issued an order granting the petition and directing a schedule of visits of increasing duration, culminating in the grandparents having visitation at their home with the children for one full weekend each month. The mother and the father separately appeal.

Preliminarily, we find that the grandparents established standing to seek visitation with the daughter.¹ "For a grandparent to obtain court-ordered visitation, the court must first find standing on a statutory basis" ( Matter of Judith DD. v. Ahava DD., 172 A.D.3d 1488, 1488, 100 N.Y.S.3d 115 [3d Dept. 2019] ; see Domestic Relations Law § 72[1] ; Matter of E.S. v. P.D., 8 N.Y.3d 150, 157, 831 N.Y.S.2d 96, 863 N.E.2d 100 [2007] ; Matter of Velez v. White, 136 A.D.3d 1235, 1236, 25 N.Y.S.3d 733 [3d Dept. 2016] ). Where, as here, the parents are living, the grandparents must show "a sufficient existing relationship with their grandchild[ren], or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court's intervention" ( Matter of Anne MM. v. Vasiliki NN., 203 A.D.3d 1476, 1479, 165 N.Y.S.3d 629 [3d Dept. 2022] [internal quotation marks and citation omitted]; see Matter of Vandenburg v. Vandenburg, 137 A.D.3d 1498, 1498, 28 N.Y.S.3d 736 [3d Dept. 2016] ). "In the latter situation, the grandparents must demonstrate that they did everything possible under the circumstances to establish a relationship with their grandchildren" ( Matter of Couse v. Couse, 72 A.D.3d 1231, 1232, 898 N.Y.S.2d 692 [3d Dept. 2010] [citation omitted]; see Matter of Carol E. v. Robert E. , 183 A.D.3d 1154, 1155, 124 N.Y.S.3d 438 [3d Dept. 2020] ).

There was evidence at the hearing that at the time of the daughter's birth, the mother and the father were still married and living together. During the daughter's infancy, the grandparents saw her approximately every other Sunday when the entire family would gather for dinner, and the grandparents also celebrated with the family on special occasions such as holidays. After the parents ceased the visits with the grandparents when the daughter was about a year and a half old, the grandmother made numerous attempts to contact the children through telephone calls, text messages and emails, and also sent them a number of packages. Under these circumstances, we are satisfied that the grandparents established a sufficient relationship with the daughter for the purpose of demonstrating standing (see Matter of Anne MM. v. Vasiliki NN., 203 A.D.3d at 1480, 165 N.Y.S.3d 629 ; Matter of Melissa X. v. Javon Y., 200 A.D.3d 1451, 1453, 161 N.Y.S.3d 362 [3d Dept. 2021] ; Matter of Neilene P. v. Lynne Q., 183 A.D.3d 1023, 1026, 123 N.Y.S.3d 749 [3d Dept. 2020] ).

However, we further find that Family Court's award of visitation to the grandparents lacks a sound and substantial basis in the record (see Matter of Anne MM. v. Vasiliki NN., 203 A.D.3d at 1481, 165 N.Y.S.3d 629 ; cf. Matter of Wendy KK. v. Jennifer KK., 160 A.D.3d 1059, 1061, 74 N.Y.S.3d 139 [3d Dept. 2018] ). In undertaking a best interests analysis, the nature and quality of the grandparents’ relationship with the children is again the primary concern, and "[o]ther important factors include the grandparent[s’] ability to nurture the child[ren], [their] attitude towards the child[ren]’s custodians, the reasons for the objections to visitation, the child[ren]’s preference and the position taken by the attorney for the child[ren]" ( Matter of Velez v. White, 136 A.D.3d at 1236, 25 N.Y.S.3d 733 ). Fundamentally, "courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one" ( Matter of E.S. v. P.D., 8 N.Y.3d at 157, 831 N.Y.S.2d 96, 863 N.E.2d 100 ).

In granting visitation to the grandparents, Family Court essentially based its determination on its belief that the son would benefit from frequent contact with family members who love him, and that "equity demand[ed]" that the daughter have the same level of visitation. While contact with loving family members is certainly a laudable goal for these and any other children, the record does not support the court's finding that the children's best interests would be served by visitation with the grandparents. Indeed, to the contrary, the mother and the father, who were separated as of the time of the hearing but were united in their opposition to the grandparents’ visitation petition, offered testimony detailing the negative effects that visitation with the grandparents had on the son.

The father testified that the son is autistic and has ADHD, which results in him having difficulty with transitions and changes in environment, and that the son is prone to "meltdowns" causing him, at times, to hit himself or cry until he throws up. According to the father, when the son was in the grandparents’ care and had a meltdown, they "couldn't figure out what to do and then they basically gave him what he wanted," which was not in accordance with the father's approach. The father also testified that the son had multiple severe meltdowns after participating in video calls with the grandparents, which the mother confirmed. The father explained that he and the mother decided to discontinue visits with the grandparents upon discovering a fist-sized bruise on the son's chest shortly after the son had visited the grandparents.

It was the mother's testimony that the son got upset when the grandmother told him during video calls to "ask Mommy and Daddy when you can come over," and after one such call he hit himself so hard in the face that he broke his glasses, while after a subsequent call he began ripping apart his bedroom wall. In addition, the mother testified that the...