KK v. KK, 523352

• Decision Date: 05 April 2018
• Docket Number: 523352
• Parties: In the Matter of WENDY KK., Appellant, v. JENNIFER KK., Respondent, and Delaware County Department of Social Services, Respondent.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1059
74 N.Y.S.3d 139

In the Matter of WENDY KK., Appellant,
v.
JENNIFER KK., Respondent,
and
Delaware County Department of Social Services, Respondent.

523352

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

Calendar Date: February 21, 2018
Decided and Entered: April 5, 2018

Teresa C. Mulliken, Harpersfield, for appellant.

Amy B. Merklen, Delaware County Department of Social Services, Delhi, for Delaware County Department of Social Services, respondent.

Lisa A. Natoli, Norwich, attorney for the children.

Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker, JJ.

MEMORANDUM AND ORDER

Lynch, J.

74 N.Y.S.3d 141

Appeals (1) from an order of the Family Court of Delaware County (Rosa, J.), entered April 12, 2016, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for custody of the subject children, and (2) from an order of said court, entered July 14, 2016, which denied petitioner's motion to renew.

Petitioner (hereinafter the grandmother) is the maternal grandmother of two children (born in 2007 and 2009), who currently reside in separate foster care placements. In 2016, it was determined that the children's mother, respondent Jennifer KK. (hereinafter the mother), permanently neglected both children and her parental rights were terminated ( Matter of Kaylee JJ. [Jennifer KK.], 159 A.D.3d 1077, 71 N.Y.S.3d 220, 2018 N.Y. Slip Op. 01366, 2018 WL 1093442 [2018] ).¹ During the pendency of the permanent neglect proceedings, the grandmother commenced this proceeding for visitation and custody of the children. After a fact-finding hearing, Family Court dismissed the petition, determining that it was not in the children's best interests to award custody to the grandmother. The court did not address the grandmother's request for visitation. The grandmother now appeals this order.²

A grandparent seeking custody of his or her grandchildren must first establish that extraordinary circumstances exist to warrant Family Court's consideration of whether the grandchildren's best interests would be served by such an award (see Domestic Relations Law § 72[2] ; Matter of Suarez v. Williams, 26 N.Y.3d 440, 446–447, 44 N.E.3d 915 [2015] ). Similarly, a grandparent seeking visitation with grandchildren must establish standing before the court may consider whether visitation is in the grandchildren's best interests (see Domestic Relations Law § 72[1] ; Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380, 779 N.Y.S.2d 159, 811 N.E.2d 526 [2004] ). A determination that a grandparent has standing to seek visitation is "conferred by the court, in its discretion, only after it has examined all the relevant facts" (Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 [1991] ). These relevant facts "include the nature and extent of the grandparent-grandchild relationship, as well as the nature and basis of the [custodians'] objection to visitation" ( Matter of Van Nostrand v. Van Nostrand, 85 A.D.3d 1352, 1352–1353, 925 N.Y.S.2d 229 [2011], lv denied 17 N.Y.3d 708, 930 N.Y.S.2d 553, 954 N.E.2d 1179 [2011] ). "It is not sufficient that the grandparent[ ] allege [s] love and affection for [his or her] grandchild[ren]" (Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573...