Layton v. Grace

• Decision Date: 04 June 2015
• Docket Number: 519014
• Citation: 129 A.D.3d 1147,2015 N.Y. Slip Op. 04696,10 N.Y.S.3d 680
• Parties: In the Matter of Jason LAYTON, Appellant, v. Terry GRACE, Respondent. Attorney for the Child, Appellant. (Proceeding No. 1.) In the Matter of Terry L. Grace, Respondent, v. Jason Layton, Appellant, and Sarah Mathes, Respondent, et al., Respondent. Attorney for the Child, Appellant. (Proceeding No. 2.).
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1147

10 N.Y.S.3d 680

2015 N.Y. Slip Op. 04696

In the Matter of Jason LAYTON, Appellant

v.Terry GRACE, Respondent.

Attorney for the Child, Appellant. (Proceeding No. 1.)

In the Matter of Terry L. Grace, Respondent

v.Jason Layton, AppellantandSarah Mathes, Respondent, et al., Respondent.

Attorney for the Child, Appellant. (Proceeding No. 2.).

519014

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

June 4, 2015.

Jehed Diamond, Delhi, for Jason Layton, appellant.

Teresa C. Mulliken, Harpersfield, attorney for the child, appellant.

Rosemarie Richards, Gilbertsville, for Sarah Mathes, respondent.

Before: PETERS, P.J., LAHTINEN, McCARTHY and ROSE, JJ.

Opinion

ROSE, J.

Appeals from an order of the Family Court of Delaware County (Becker, J.), entered May 5, 2014, which, among other things, partially granted petitioner's application, in proceeding No. 2 pursuant to Family Ct. Act articles 6 and 8, for modification of a prior order of visitation.

Jason Layton (hereinafter the father) and respondent Sarah Mathes (hereinafter the mother) are the parents of a child (born in 2005). When the child was one year old, the father joined the military and, due to the mother's substance abuse problem, Terry Grace (hereinafter the paternal grandmother) and Karen Mathes (hereinafter the maternal grandmother) obtained custody of the child pursuant to a court order entered in Texas. The child lived with the paternal grandmother in Texas from 2007 until 2009, when the father returned from his military commitment. The father then lived with the paternal grandmother and the child until August 2010, when he moved with the child to New York. At that time, the maternal grandmother and the paternal grandmother executed an affidavit granting the father physical possession of the child and retaining the right of each grandmother to receive 30 days of visitation in Texas in the summer. Although the 60–day summer visitation in Texas occurred in 2011, the father refused to allow it the following year; he then filed a petition in New York to modify custody and visitation. That proceeding was resolved in February 2013 when Family Court issued an order on the parties' consent granting, among other things, sole custody to the father and supervised visitation to the mother and the maternal grandmother, to occur while the child visited the paternal grandmother in Texas.

In May 2013, the father commenced proceeding No. 1 to modify the paternal grandmother's visitation, seeking to, among other things, end her court-ordered visitation. In response, the paternal grandmother commenced proceeding No. 2 seeking to enforce the prior agreement and award additional visitation time. Following fact-finding and Lincoln hearings, Family Court ordered that, among other things, the paternal grandmother was to have three weeks of annual summer visitation in Texas and the maternal grandmother would have one week there. The father and attorney for the child appeal.

Where, as here, an existing order of visitation for a grandparent exists, the threshold determination is whether there has been a change in circumstances sufficient to warrant modification (see Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380, 779 N.Y.S.2d 159, 811 N.E.2d 526 [2004] ; Matter of Johnson v. Zides, 57 A.D.3d 1318, 1319, 870 N.Y.S.2d 576 [2008] ; Matter of Stellone v. Kelly, 45 A.D.3d 1202, 1204, 846 N.Y.S.2d 723 [2007] ). Although Family Court did not expressly detail any findings with respect to whether the parties demonstrated a sufficient change in circumstances to warrant modification, the record is sufficient for us to make our own determination (see Matter of Christina KK. v. Kathleen LL., 119 A.D.3d 1000, 1002–1003, 990 N.Y.S.2d 100 [2014] ; Matter of D'Angelo v. Lopez, 94 A.D.3d 1261, 1262, 942 N.Y.S.2d 662 [2012] ).

To that end, we find that the well-documented deterioration in the relationship between the paternal grandmother and the father is sufficient to constitute the requisite change in circumstances (see Matter of Johnson v. Zides, 57 A.D.3d at 1319, 870 N.Y.S.2d 576 ; Matter of Stellone v. Kelly, 45 A.D.3d at 1204, 846 N.Y.S.2d 723 ).

Having met the initial threshold, the relevant determination is whether “Family Court properly exercised its discretion in determining a visitation schedule that would be in the best interests of the child” (Matter of Burton v. Barrett, 104 A.D.3d 1084, 1086, 961 N.Y.S.2d 610 [2013] ). Factors to be considered include “the nature and extent of the existing relationship between the grandparent and child[,] ... the basis and reasonableness of the parent's objections, the grandparent's nurturing skills and attitude toward the parent, the ... [position of the attorney for the child] and the child's wishes” (id. at 1087, 961 N.Y.S.2d 610 [internal quotation marks and citations omitted]; see Matter of Christina KK. v. Kathleen LL., 119 A.D.3d at 1003, 990 N.Y.S.2d 100 ; Matter of Stellone v. Kelly, 45 A.D.3d at 1204–1205, 846 N.Y.S.2d 723 ). In weighing these factors, Family Court has broad discretion to determine an appropriate visitation schedule, and its determination will...