Fitzpatrick v. Fitzpatrick

• Decision Date: 02 March 2016
• Citation: 26 N.Y.S.3d 360,137 A.D.3d 784
• Parties: In the Matter of Joseph FITZPATRICK, et al., respondents, v. Daniel FITZPATRICK, et al., appellants.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 784

26 N.Y.S.3d 360

In the Matter of Joseph FITZPATRICK, et al., respondents,

v.Daniel FITZPATRICK, et al., appellants.

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

March 2, 2016.

Daniel Fitzpatrick and Maureen Fitzpatrick, Staten Island, N.Y., appellants pro se.

Helene Chowes, New York, N.Y., attorney for the child.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.

Appeal from an order of the Family Court, Kings County (Michael L. Katz, J.), dated November 26, 2014. The order, after a hearing, granted the petition of the paternal grandparents of the subject child pursuant to Domestic Relations Law § 72(1) for visitation.

ORDERED that the order is affirmed, without costs or disbursements.

The appellants are the parents of the subject child. The petitioners are the paternal grandparents, who sought an order awarding them visitation. The petition was granted over the objection of both appellants, and this appeal followed.

" ‘When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry’ " (Matter of Moskowitz v. Moskowitz, 128 A.D.3d 1070, 1070, 9 N.Y.S.3d 674, quoting Matter of Brancato v. Federico, 118 A.D.3d 986, 986, 988 N.Y.S.2d 678 ; see Matter of Gray v. Varone, 101 A.D.3d 1122, 1123, 956 N.Y.S.2d 573 ). "First, it must find that the grandparent has standing, based on, inter alia, equitable considerations" (Matter of Gray v. Varone, 101 A.D.3d at 1123, 956 N.Y.S.2d 573 ; see Matter of Moskowitz v. Moskowitz, 128 A.D.3d at 1070, 9 N.Y.S.3d 674 ; Matter of Brancato v. Federico, 118 A.D.3d at 986, 988 N.Y.S.2d 678 ). "If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child" (Matter of Gray v. Varone, 101 A.D.3d at 1123, 956 N.Y.S.2d 573 ; see Matter of E.S. v. P.D., 8 N.Y.3d 150, 157, 831 N.Y.S.2d 96, 863 N.E.2d 100 ; Matter of Moskowitz v. Moskowitz, 128 A.D.3d at 1070, 9 N.Y.S.3d 674 ).

"In considering whether a grandparent has standing to petition for visitation based upon ‘circumstances show[ing] that conditions exist which equity would see fit to intervene’ (Domestic Relations Law § 72 [1] ), ‘an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,’ among other factors" (Matter of Lipton v. Lipton,

98 A.D.3d 621, 621, 949 N.Y.S.2d 501, quoting Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; see Matter of Moskowitz v. Moskowitz, 128 A.D.3d at 1070, 9 N.Y.S.3d 674 ). The court must also consider " ‘the nature and basis of the parents' objection to visitation’ " (Matter of Bender v. Cendali, 107 A.D.3d 981, 982, 968 N.Y.S.2d 175 ; quoting Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; see Matter of Brancato v. Federico, 118 A.D.3d at 986, 988 N.Y.S.2d 678 ). "In cases where such a [grandparent-grandchild] relationship has been frustrated by a parent, the grandparent must show, inter alia, that he or she has made a sufficient effort to establish [a relationship with the child], so that the court perceives [the matter] as one deserving the court's intervention" (Matter of Brancato v. Federico, 118 A.D.3d at 987, 988 N.Y.S.2d 678 [internal quotation marks omitted]; see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 ). " ‘The evidence necessary will vary in each case but what is required of grandparents must always be measured against what they could reasonably have done under the circumstances' " (Matter of Bender v. Cendali, 107 A.D.3d at 982, 968 N.Y.S.2d 175, quoting Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 183, 573 N.Y.S.2d 36, 577 N.E.2d 27 ; see Matter of Lipton v. Lipton, 98 A.D.3d at 622, 949 N.Y.S.2d 501 ).

Here, the Family Court providently exercised its discretion in determining that the paternal grandparents had standing to petition for visitation pursuant to the equitable circumstances clause of Domestic Relations Law § 72(1) (see Matter of Quinn v. Heffler, 102 A.D.3d 876, 876, 958 N.Y.S.2d 473 ; Matter of Gort v. Kull, 96 A.D.3d 842, 843, 949 N.Y.S.2d 62 ). Through their testimony and the photographic evidence they submitted, the grandparents established that they had maintained regular contact with the subject child and his siblings for many years before a dispute between the grandparents and the parents led the children's parents to cease permitting such contact (see Matter of Gray v. Varone, 101 A.D.3d at 1123, 956 N.Y.S.2d 573 ; Matter of Gort v. Kull, 96 A.D.3d at 843, 949 N.Y.S.2d 62 ; Matter of Dubiel v. Schaefer, 108 A.D.3d 1093, 1095, 969 N.Y.S.2d 311 ; Matter of Agusta v. Carousso, 208 A.D.2d 620, 621, 617 N.Y.S.2d 189 ).

Standing to petition alone, however, does not ensure that grandparent visitation will be granted. As stated previously, the Family Court must also find that such visitation is in the best interests of the subject child (see Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380, 779 N.Y.S.2d 159, 811 N.E.2d 526 ). In making this determination, "courts should not lightly intrude on the family relationship against a fit parent's wishes," as "[t]he 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, ...