Hill v. Juhase

• Decision Date: 25 April 2013
• Parties: In the Matter of Ruth C. HILL, Respondent, v. Nicole M. JUHASE, Appellant, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1278

963 N.Y.S.2d 765

2013 N.Y. Slip Op. 02792

In the Matter of Ruth C. HILL, Respondent,

v.Nicole M. JUHASE, Appellant, et al., Respondent.

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

April 25, 2013.

Victor B. Carrascoso, Cooperstown, for appellant.

Michelle Stone, Vestal, attorney for the children.

Before: PETERS, P.J., STEIN, SPAIN and GARRY, JJ.

SPAIN, J.

Appeal from an order of the Family Court of Broome County (Charnetsky, J.), entered December 21, 2011, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for visitation with the subject children.

Petitioner is the paternal grandmother of two minor children, Aiyanna (born in 2006) and Sierra (born in 2008). Petitioner's son, respondent Kasheem C. Hill (hereinafter the father), is the biological father of Sierra but not of Aiyanna, although he acknowledged paternity of Aiyanna and consented to be her father. Respondent Nicole M. Juhase (hereinafter the mother) and the father never married, but cohabitated for a period of time and eventually separated. In March 2010, Family Court issued an order granting custody of the children to the mother and parenting time to the father as agreed to by the parties. Believing that she was not getting sufficient visitation with the children when she traveled from her home in Maryland to New York every other month, petitioner filed a Family Court petition in May 2011 seeking visitation. At the hearing, the parties appeared pro se and the children were represented by an attorney. Prior to the hearing, the mother agreed to allow petitioner to visit the children for the day (four to six hours) every other month in Broome County where they live, initially with the father present as a transition, but opposed her request to allow her to take them to the City of Oneonta, Otsego County where petitioner has relatives, approximately one hour away.

Following the hearing, at which only petitioner and the mother testified, ¹ Family Court granted the petition and directed that petitioner would have visitation the first Saturday of every month for four consecutive months beginning January 7, 2012 from 10:00 a.m. to 4:00 p.m., with the visits restricted to Broome County and the first two visits to be conducted in the presence of the father. Upon satisfactory compliance with such provisions, the court directed that subsequent visits would be the first Saturday of every other month commencing June 2, 2012 from 10:00 a.m. to 6:00 p.m. with no restriction to Broome County nor any requirement that the father be present. The court further directed that no one was to consume alcoholic beverages in the presence of the children. The mother appeals from this visitation order. ²

The mother argues that Family Court erred in finding that petitioner had standing and awarding her visitation. We agree. Where, as here, the parents of children are alive, Domestic Relations Law § 72 gives grandparents the right to seek visitation with their grandchildren where, as a threshold matter, they can establish circumstances in which “equity would see fit to intervene,” i.e., that equitable circumstances exist (Domestic Relations Law § 72[1]; see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181, 573 N.Y.S.2d 36, 577 N.E.2d 27 [1991];Matter of Couse v. Couse, 72 A.D.3d 1231, 1232, 898 N.Y.S.2d 692 [2010] ). Grandparents “must establish a sufficient existing relationship with their grandchild, 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 Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27). Grandparents must allege and establish more than “love and affection” for their grandchildren ( id.;see Matter of Bassett v. McGraw, 55 A.D.3d 980, 981, 865 N.Y.S.2d 720 [2008] ). Only when a showing of equitable circumstances has been made will the court then determine whether visitation would be in the grandchildren's best interests ( see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 181, 573 N.Y.S.2d 36, 577 N.E.2d 27;Matter of Couse v. Couse, 72 A.D.3d at 1231, 898 N.Y.S.2d 692). While Family Court is accorded deference in determining the propriety of visitation, the court made no express credibility determinations here, and its determination must have a sound basis in the record ( see Matter of Opalka v. Skinner, 81 A.D.3d 1005, 1008, 916 N.Y.S.2d 271 [2011];Matter of Baker v. Blanchard, 74 A.D.3d 1427, 1428, 903 N.Y.S.2d 200 [2010] ).

Notably, “essential” components of the standing inquiry are “the nature and extent of the grandparent-grandchild relationship” and “the nature and basis of the parent['s] objection to visitation” (Matter of Emanuel S. v. Joseph E. 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27). Family Court made no such findings here, simply stating in its oral ruling that petitioner “does appear to have a relationship with the children,” without describing its “nature” or “extent” ( id.) and did not address the basis of the mother's objections. Upon our review of the testimony, we conclude that petitioner did not establish equitable circumstances that justify according her standing to force the mother to accept visitation outside parameters within which she is comfortable as a fit and responsible parent ( see Matter of Van Nostrand v. Van Nostrand, 85 A.D.3d 1352, 1353, 925 N.Y.S.2d 229 [2011],lv. denied17 N.Y.3d 708, 2011 WL 4027479 [2011];Matter of Fondanarosa v. Grimm, 58 A.D.3d 840, 841, 874 N.Y.S.2d 497 [2009] ). In so holding, we are reminded that “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 150, 157, 831 N.Y.S.2d 96, 863 N.E.2d 100 [2007];see Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 [2000] ).

The record before us reflects that the parents are fit and employed and they continue to cooperatively share responsibilities for caring for the children in the mother's home, assisted by the maternal grandmother. Petitioner, a day-care provider, testified that she lives in Maryland, has relatives including a sister in Oneonta, and travels to New York approximately every other month. Although her testimony was vague, it appears that she sporadically saw the children, born in 2008 and 2006, a few times per year for short visits in 2009, 2010 and 2011 on trips to New York, and one or two times when the mother or father drove to Maryland with the children and stayed overnight at petitioner's house on their way to Virginia. She has never baby-sat for them or visited alone with them, but sends or brings cards and gifts. She claimed that on her New York trips, she often did not see them or saw them for only an hour or so because they usually already had other plans, which the mother was unwilling or unable to alter at the last minute, or the mother picked them up after a short visit with petitioner and the father. Petitioner does not get along with or communicate with the mother, and the reasons for this were not clear. Although requested by the mother, it appears that petitioner often gave little notice of visits, a few days or hours, and the record suggests that petitioner's visits to New York were focused on visits to Oneonta and were not primarily to see the children, although she did request to see them when here. Her testimony did not clarify why she did not pursue visitation with the children at her son's residence or during his parenting time.

Petitioner also claimed that she had nowhere to visit with the children in Broome County since her niece—at whose home she had occasionally visited with the children—had moved away, but conceded she had always stayed in hotels on her visits and could visit with them...