Rubel v. Wilson

• Decision Date: 21 November 2013
• Citation: 975 N.Y.S.2d 230,2013 N.Y. Slip Op. 07772,111 A.D.3d 1065
• Parties: In the Matter of Kathy RUBEL, Respondent, v. Martha WILSON, Appellant, et al., Respondent. (Proceeding No. 1.) In the Matter of Kathy Rubel, Respondent, v. Martha Wilson et al., Appellants. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 1065

975 N.Y.S.2d 230

2013 N.Y. Slip Op. 07772

In the Matter of Kathy RUBEL, Respondent,

v.Martha WILSON, Appellant, et al., Respondent. (Proceeding No. 1.)

In the Matter of Kathy Rubel, Respondent,

v.Martha Wilson et al., Appellants. (Proceeding No. 2.)

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

Nov. 21, 2013.

Timothy P. Burke, Monticello, for appellants.

Ted J. Stein, Woodstock, for Kathy Rubel, respondent.

Bernard Clyne, Woodbourne, attorney for the child.

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

SPAIN, J.

Appeals (1) from an order of the Family Court of Sullivan County (McGuire, J.), entered February 4, 2011, which, in two proceedings pursuant to Family Ct. Act article 6, found petitioner to have established standing, and (2) from an order of said court, entered March 18, 2011, which, among other things, granted petitioner's application, in proceeding No. 1 pursuant to Family Ct. Act article 6, for visitation with her grandchild.

In 2011, petitioner, the maternal grandmother of Dakota (born in 2004) and Cassidy (born in 2007), commenced these proceedings against respondent Martha Wilson (hereinafter the mother), and the children's fathers,¹ seeking visitation with the children following the deterioration of petitioner's relationship with the mother. After bifurcated hearings, Family Court issued two detailed written decisions, the first—entered February 4, 2011—determining that petitioner had standing to proceed with the petitions, and the second—entered March 18, 2011—granting petitioner's application in proceeding No. 1 for visitation with Dakota, but dismissing petitioner's application in proceeding No. 2 for visitation with Cassidy. The mother appeals both orders ² and Cassidy's father, respondent Richard Rivera, joins in the mother's appeal from the March 2011 order.³ Petitioner's contention on appeal that she should have been granted visitation with Cassidy is not properly before this Court inasmuch as she has not appealed from Family Court's order ( see Hecht v. City of New York, 60 N.Y.2d 57, 61, 467 N.Y.S.2d 187, 454 N.E.2d 527 [1983]; Matter of Sanders v. Slater, 53 A.D.3d 716, 717 n., 861 N.Y.S.2d 461 [2008] ).

Initially, we are unpersuaded by the mother's contention that Family Court should have dismissed the petitions for failure to state a cause of action. Liberally construing the visitation petition and giving it the benefit of every favorable inference, we find that the information therein is sufficient to “fit within a cognizable legal theory” and gave the mother fair notice of the claims ( Matter of McBride v. Springsteen–El, 106 A.D.3d 1402, 1402, 967 N.Y.S.2d 768 [2013] [internal quotation marks and citation omitted]; see Matter of Pamela N. v. Neil N., 93 A.D.3d 1107, 1108, 941 N.Y.S.2d 751 [2012] ).

Family Court correctly determined that petitioner established standing to petition for visitation with Dakota. When a child's parents are living, a grandparent who seeks visitation with his or her grandchild must establish that “conditions exist which equity would see fit to intervene” (Domestic Relations Law § 72[1] ) in order to obtain standing ( see Matter of Laudadio v. Laudadio, 104 A.D.3d 1091, 1092, 962 N.Y.S.2d 485 [2013] ). The grandparent “must establish a sufficient existing relationship with [his or her] 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 178, 182, 573 N.Y.S.2d 36, 577 N.E.2d 27 [1991] ). In the latter situation, the grandparent's “effort is measured against what [he or she] could reasonably have done under the circumstances” ( Matter of Luma v. Kawalchuk, 240 A.D.2d 896, 896, 658 N.Y.S.2d 744 [1997]; see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 183, 573 N.Y.S.2d 36, 577 N.E.2d 27; Matter of Couse v. Couse, 72 A.D.3d 1231, 1232, 898 N.Y.S.2d 692 [2010] ). If the grandparent has established the right to be heard, Family Court will then consider whether such visitation is in the child's best interests ( see 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]; Matter of Hill v. Juhase, 105 A.D.3d 1278, 1279–1280, 963 N.Y.S.2d 765 [2013]; Matter of Couse v. Couse, 72 A.D.3d at 1232, 898 N.Y.S.2d 692).

Here, the testimony supports Family Court's finding that petitioner enjoyed a regular and loving relationship, and frequent and extended visitation, with Dakota from his birth until 2007, when he was 3 1/2 years old. Specifically, Dakota regularly stayed with petitioner at her home for extended weekend visits, multiple times per month, when she cared for him. When petitioner moved to West Virginia for nine months in 2005, Dakota stayed with petitioner for an extended period of time while the mother recovered from surgery, although the exact duration of that stay was disputed by the parties. Upon petitioner's return to New York in 2006, she lived with the mother and Dakota for five or six months, and thereafter continued to take Dakota on her days off from work, including caring for him over weekend stays. Following a disagreement between petitioner and the mother in November 2007—just months after Cassidy's birth—as to when Dakota was to return home, the mother cut off all contact between the children and petitioner, later telling petitioner that she would call the police if she came to the house; the mother avoided or refused all contact with petitioner and requests for visitation through 2010. Thereafter, petitioner had difficulty locating the mother, who moved three times with the children without providing family members with her new address or telephone number. During that period, petitioner repeatedly sought help from various family members to talk with the mother to request that she permit petitioner to see Dakota, albeit to no avail. Further efforts by petitioner would clearly have been futile, as the court recognized. We find that such proof evinced a sufficient existing relationship between petitioner and Dakota to confer standing.

Turning to whether visitation with petitioner is in the best interests of Dakota, we find that Family Court's affirmative determination, made after a fact-finding hearing and a Lincoln hearing with the child, then age seven, is supported by a sound and substantial...