Laudadio v. Laudadio

• Decision Date: 28 March 2013
• Citation: 962 N.Y.S.2d 485,2013 N.Y. Slip Op. 02123,104 A.D.3d 1091
• Parties: In the Matter of Maryanne Marie LAUDADIO, Respondent, v. Rocco LAUDADIO et al., Appellants.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 1091

962 N.Y.S.2d 485

2013 N.Y. Slip Op. 02123

In the Matter of Maryanne Marie LAUDADIO, Respondent,

v.Rocco LAUDADIO et al., Appellants.

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

March 28, 2013.

Clifford Gordon, Monticello, for Rocco Laudadio, appellant.

Ivy M. Schildkraut, Monticello, for Stephanie Montalvo, appellant.

E. Danielle Jose–Decker, Monticello, attorney for the child.

Before: ROSE, J.P., LAHTINEN, STEIN and EGAN JR., JJ.

EGAN JR., J.

Appeal from an order of the Family Court of Sullivan County (McGuire, J.), entered January 20, 2012, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, for visitation with respondents' child.

Respondents, Rocco Laudadio (hereinafter the father) and Stephanie Montalvo (hereinafter the mother), are the unmarried parents of a child (born in 2011), and petitioner is the child's paternal grandmother. Following an incident that occurred when the child was approximately two months old, during the course of which the mother's sister struck petitioner, respondents cut off visitation between petitioner and the child. Petitioner thereafter commenced this proceeding seeking visitation with the child and, following a bifurcated hearing, Family Court granted petitioner's application and awarded petitioner visitation on the first Sunday of each month. Respondents now separately appeal.

We affirm. Where a grandparent seeks visitation and, as is the case here, both of the child's parents are living, Family Court first must ascertain whether “conditions exist which equity would see fit to intervene” (Domestic Relations Law § 72[1] ) in order to confer standing ( see Matter of Van Nostrand v. Van Nostrand, 85 A.D.3d 1352, 1352, 925 N.Y.S.2d 229 [2011],lv. denied17 N.Y.3d 708, 2011 WL 4027479 [2011];Matter of Couse v. Couse, 72 A.D.3d 1231, 1231–1232, 898 N.Y.S.2d 692 [2010] ). “An essential part of the standing inquiry is the nature and extent of the existing grandparent-grandchild relationship ... [as well as] the basis for the parents' objection to visitation” ( Matter of Kenyon v. Kenyon, 251 A.D.2d 763, 763, 674 N.Y.S.2d 455 [1998] [citations omitted]; see Matter of Van Nostrand v. Van Nostrand, 85 A.D.3d at 1352–1353, 925 N.Y.S.2d 229). Should Family Court determine that the grandparent has standing to seek visitation, the question then becomes whether such visitation is in the child's best interests ( see Matter of Couse v. Couse, 72 A.D.3d at 1232, 898 N.Y.S.2d 692;Matter of Kenyon v. Kenyon, 251 A.D.2d at 763, 674 N.Y.S.2d 455;see also Matter of Quinn v. Heffler, 102 A.D.3d 876, 876, 958 N.Y.S.2d 473 [2013] ). Inasmuch as Family Court had the advantage of assessing the witnesses' testimony and demeanor firsthand, its credibility determination “should not be set aside if it is supported by a sound and substantial basis in the record” ( Matter of Quinn v. Heffler, 102 A.D.3d at 876, 958 N.Y.S.2d 473;see Matter of Thompson v. Gibeault, 305 A.D.2d 873, 874, 760 N.Y.S.2d 580 [2003] ).

Here, petitioner testified that she purchased a crib and dresser for the child, was present for the child's birth, visited the child in the hospital, prepared dinner for the family when the child came home from the hospital and thereafter visited the child “at least [10] times” during the first month of the child's life. According to petitioner, each of these visits would last “[a] few hours,” during which time she would hold, feed and change the child. Additionally, petitioner attended the child's first doctor's appointment, brought respondents and the child to a local shopping mall for the child's first photos and transported the family to New York City to visit other relatives and retrieve gifts for the child. Although the mother contended that petitioner lost interest in the child in late April 2011, the mother also acknowledged that petitioner curtailed her visitations—at the mother's request—in order to give the mother more time alone with the child. Finally, the father testified that after visitationbetween petitioner and the child was cut off in May 2011, petitioner contacted him and asked to see the child on approximately four occasions, which he would not permit. Such proof, in our view, demonstrates a sufficient existing relationship between petitioner and the child to confer standing—particularly given the age of the child and the brief interval of time that elapsed between her birth and the interruption in visitation ( see generally Matter of Lipton v. Lipton, 98 A.D.3d 621, 622, 949 N.Y.S.2d 501 [2012] [“In assessing the sufficiency of the grandparent's efforts, what is required of grandparents must always be measured against what they could reasonably have done under the circumstances”] [internal quotation marks and citations omitted]...