MTR. OF WILSON v. McGlinchey

• Citation: 779 N.Y.S.2d 159,2 N.Y.3d 375,811 N.E.2d 526
• Parties: In the Matter of CAROL A. WILSON et al., Respondents, v LINDA A. McGLINCHEY et al., Appellants. (And Another Related Proceeding.)
• Decision Date: 13 May 2004
• Court: New York Court of Appeals

2 N.Y.3d 375

811 N.E.2d 526

779 N.Y.S.2d 159

In the Matter of CAROL A. WILSON et al., Respondents, v LINDA A. McGLINCHEY et al., Appellants. (And Another Related Proceeding.)

Court of Appeals of the State of New York.

Argued March 30, 2004.

Decided May 13, 2004.

Michelle I. Benoit, Albany, for appellants.

William V. O'Leary, Albany, for respondents. Eliot Spitzer, Attorney General, Albany (Evelyn M. Tenenbaum, Caitlin J. Halligan and Wayne L. Benjamin of counsel), in his statutory capacity under Executive Law § 71.

Thomas C. Hall, Troy, Law Guardian.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur.

OPINION OF THE COURT

GRAFFEO, J.

In this petition to modify a Family Court third-party visitation order, the grandparents appeal from an Appellate Division order granting the parents' request to terminate visitation based on a change in circumstances since issuance of the initial order. Because we agree with the Appellate Division that terminating visitation is in the child's best interest, we affirm.

Petitioners Carol and Steven Wilson are the parents of two daughters. Respondents Linda and Brian McGlinchey (grandparents) are Carol Wilson's parents and have been estranged from their daughter since 1997, prior to the daughter's marriage. In October 1999, the grandparents filed a petition pursuant to Domestic Relations Law § 72 seeking visitation with their four-month-old granddaughter. The Wilsons opposed the petition. Before a hearing was held, however, the parties reached an agreement and their written stipulation was incorporated into a Family Court order entered on June 22, 2000. Under the terms of the stipulation, the Wilsons agreed that the grandparents would have eight hours of visitation with the child every month, and the parties further consented to begin therapeutic family counseling by March 1, 2001. It is undisputed that this family counseling never occurred.

After several months of visitation, the Wilsons commenced this proceeding in Family Court to terminate the visitation between the grandparents and their daughter. The petition alleged that a change in circumstances had occurred since the entry of the Family Court order. Specifically, the Wilsons claimed that the visits were an "unmitigated disaster," citing one incident where Carol Wilson summoned the police for aid in removing the grandparents from her home at the end of a visit with her daughter. In addition, the Wilsons asserted that the situation had worsened over time and that the grandparents employed threats of further court action to "bully" them into acceding to the grandparents' demands. Finally, the Wilsons stated their belief that the best interest of their child would be served only by discontinuing visitation and vacating the order.

The grandparents opposed the petition and cross-petitioned for their visitation sessions to include the Wilsons' younger daughter, born after the parties' stipulation. They countered that the Wilsons had impeded the agreement by restricting the days, times and locations of their visits and interrupting their interactions with their granddaughter during visits in the Wilsons' home. The grandparents also claimed that the Wilsons mischaracterized normal toddler behavior, such as crying, as evidence of the child's discomfort during visitation.

Family Court conducted a three-day hearing that resulted in the dismissal of the Wilsons' petition and denial of the grandparents' cross petition. After receiving testimony from the parties and the therapists called by each side, as well as considering the submission from the Law Guardian appointed to represent the children, the court concluded that the Wilsons failed to demonstrate a change in circumstances warranting termination of visitation between the grandparents and the older child but found that the younger child's best interest would not be served by visitation with the grandparents. The court observed that "the level of animosity between the parties, coupled with the obvious and extreme dysfunction in this family, mitigates against [such] an award of visitation" (Matter of McGlinchey v Wilson, Fam Ct, Rensselaer County, Oct. 26, 2001, Hummel, J., UCMS Docket No. V-00178-01, slip op, at 10).¹ The parents appealed from that part of the order dismissing their petition to terminate visitation as to the older child.²

The Appellate Division modified, on the law and the facts, by granting the Wilsons' petition, and vacated the Family Court visitation order. Relying on testimonial and other evidence from the hearing, the Court found that the child and her mother and grandmother all suffered from emotional distress as a consequence of the increasing tension and hostility between the parties surrounding the visits. Moreover, the Court viewed the parties as "incapable of preventing their feelings toward one another from infecting any visitation" and reasoned that, in light of the parents' and grandparents' use of the child as a "pawn" in their battle, the child would likely be harmed by continuing "to force visitation with [the grandparents] against her parents' wishes" (305 AD2d 879, 881 [3d Dept 2003]). The Court concluded that the Wilsons had demonstrated a change in circumstances reflecting that the visitation was no longer in the child's best interest.

On appeal to this Court, the grandparents dispute the factual findings and legal analysis of the Appellate Division and contend that the parents failed to meet their burden of proof establishing a change in circumstances that warranted modification of the existing visitation order. Thus, they urge that consideration of the older child's best interest was inappropriate in this situation and that visitation should be maintained. We disagree.

In its decision in Troxel v Granville (530 US 57 [2000]), a plurality of the United States Supreme Court recognized "that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children" (id. at 66; see Matter of Ronald FF. v Cindy GG., 70 NY2d 141 [1987]

). Troxel involved an as-applied constitutional challenge to Washington State's third-party visitation statute. The plurality stressed the deference that a state must give to the child-rearing decisions of fit parents:

"[i]n an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision [restricting visitation] becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination" (530 US at 70).

In New York, Domestic Relations Law § 72 acknowledges the value to children of grandparent relationships but does not create "an absolute or automatic right of visitation" (Lo Presti v Lo Presti, 40 NY2d 522, 526 [1976]). Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild in two specific instances—where one or both parents of the child have died or "where circumstances show that conditions exist which equity would see fit to intervene" (Domestic Relations Law § 72 [1]; see Lo Presti, 40 NY2d at 526

). When grandparents petition for visitation under section 72, the court undertakes a two-part inquiry: "[f]irst, it must find standing based on death or equitable circumstances which permit the court to entertain the petition. If it concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild" (Matter of Emanuel S. v Joseph E., 78 NY2d 178, 181 [1991]). Standing, therefore, does not ensure that visitation will be granted—the court also has to find that such visitation is in the best interest of the child.

Once a visitation order is entered, it may be modified only "upon a...