Emanuel S. v. Joseph E.

• Decision Date: 01 July 1991
• Citation: 573 N.Y.S.2d 36,577 N.E.2d 27,78 N.Y.2d 178
• Parties: , 577 N.E.2d 27 In the Matter of EMANUEL S. et al., Appellants, v. JOSEPH E. et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 36

573 N.Y.S.2d 36

78 N.Y.2d 178, 577 N.E.2d 27

In the Matter of EMANUEL S. et al., Appellants, v. JOSEPH E. et al., Respondents.

Court of Appeals of New York.

July 1, 1991.

Leslie I. Levine, White Plains, for appellants.

Milton S. Gould, David H. Pikus and Karim G. Lynn, New York City, for respondents.

Alfred Reinharz, law guardian for Max E.

OPINION OF THE COURT

SIMONS, Judge.

The narrow issue presented is whether section 72 of the Domestic Relations Law may be applied to grant standing to grandparents seeking visitation with a grandchild when the nuclear family is intact and the parents object to visitation.

The question arises on the petition of Emanuel S., the grandfather of Max, an infant born to respondents in 1986. Petitioner is the adoptive father of Max's mother. ¹ He and his wife visited with Max during the first three months of his life but were thereafter prevented from any contact with him when their relationship with respondents deteriorated. They instituted this proceeding approximately one year after Max's birth. Following lengthy hearings and an award of interim visitation to the grandparents, Family Court allowed them visitation for six hours on the second Sunday of every month. The court made extensive factual findings and concluded that (1) the animosity between the parents and grandparents was not a sufficient reason to deny the visitation, (2) the same criteria used in grandparent visitation cases for nonintact families should be applied to intact families, and (3) visitation by the grandparents was in Max's best interests. The Appellate Division reversed, holding that Domestic Relations Law § 72 precludes grandparents from seeking visitation where the child's natural parents object and neither of the parents have "forfeited parental responsibility." (161 A.D.2d 83, 84, 560 N.Y.S.2d 211.) The grandfather and the Law Guardian appeal by our leave.

At common law, grandparents had no standing to assert rights of visitation against a custodial parent: a petition seeking such relief would necessarily have been dismissed (see, Lo Presti v. Lo Presti, 40 N.Y.2d 522, 526-527, 387 N.Y.S.2d 412, 355 N.E.2d 372; Matter of Noll v. Noll, 277 App.Div. 286, 98 N.Y.S.2d 938; Matter of Geri v. Fanto, 79 Misc.2d 947, 949, 361 N.Y.S.2d 984). In 1966 the Legislature enacted section 72 of the Domestic Relations Law and for the first time granted grandparents standing to seek visitation rights. Not all grandparents were within the statute, however. As originally enacted, visitation was available only when the grandparents' child had died. Grandparents had no independent standing to maintain the proceeding; their rights were derived entirely from the deceased parent.

In 1975, the statute was amended to allow standing not only where a parent had died, but also "where circumstances show that conditions exist which equity would see fit to intervene." ² The amendment also removed the clause limiting standing to grandparents whose child had died. Thus, a petition for grandparental visitation may now be entertained in two situations. Where either parent of the grandchild has died, the grandparents have an absolute right to standing. In all other circumstances, grandparents will have standing only if they can establish circumstances in which equity would see fit to intervene. The amended statute, as several courts have recognized, rests on the humanitarian concern that " '[v]isits with a grandparent are often a precious part of a child's experience and there are benefits which devolve upon the grandchild * * * which he cannot derive from any other relationship' " (Matter of Ehrlich v. Ressner, 55 A.D.2d 953, 391 N.Y.S.2d 152, quoting Mimkon v. Ford, 66 N.J. 426, 437, 332 A.2d 199, 204; see, Matter of Vacula v. Blume, 53 A.D.2d 633, 384 N.Y.S.2d 208).

When grandparents seek visitation under either provision the court is faced with two questions. First, it must find standing based on death or equitable circumstances which permit the court to entertain the petition. If it concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild. In this case Max's parents are alive and, therefore, petitioner seeks standing under the equitable circumstances clause of section 72 of the Domestic Relations Law.

We have never defined the "circumstances" or "conditions" under which "equity would see fit to intervene" to allow standing. The Appellate Division interpreted the statute narrowly, concluding that the clause permitted standing only in cases where there was "a change in the status of the nuclear family, or interference with a 'derivative' right, or some abdication of parental responsibility" (Matter of Emanuel S. v. Joseph E., 161 A.D.2d, at 87, 560 N.Y.S.2d 211). We conclude that the statute is not so limited.

The equitable circumstances clause of section 72 does not establish a derivative right to standing for grandparents based upon some void in the nuclear family created by death, divorce or similar disability or by forfeiture resulting from neglect. On the contrary, the 1975 amendment adding this clause liberalized the law and granted all grandparents a right to seek standing that was no longer dependent upon the status of the parents. Moreover, the statute neither expressly nor implicitly excludes from its provisions grandparents of children who are part of an intact nuclear family. The sponsor of the bill noted that the new provision...