E.S. v. P.D.

• Decision Date: 15 February 2007
• Citation: 8 N.Y.3d 150,863 N.E.2d 100
• Parties: In the Matter of E.S., Respondent, v. P.D., Appellant.
• Court: New York Court of Appeals Court of Appeals

863 N.E.2d 100

8 N.Y.3d 150

In the Matter of E.S., Respondent, v. P.D., Appellant.

Court of Appeals of New York.

February 15, 2007.

William V. O'Leary, Albany, for appellant.

Thomas K. Campagna, P.C., Ronkonkoma (Thomas K. Campagna of counsel), for respondent.

Robert D. Gallo, Sayville, and Judy Poznik, Law Guardians.

Andrew Cuomo, Attorney General, Albany (Nancy A. Spiegel, Caitlin J. Halligan, Daniel Smirlock and Patrick J. Walsh of counsel), amicus curiae.

OPINION OF THE COURT

READ, J.

We are asked to decide whether the grandparent in this case was properly granted visitation with her grandson pursuant to section 72(1) of the Domestic Relations Law, and, if so, whether this provision is constitutional in view of the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). For the reasons that follow, we conclude that section 72(1) was followed here, and is constitutional, both on its face and as applied.

I.

A.D. (mother) married P.D. (father) in 1992; their son C.D. was born in November 1993. In June 1997, A.D. was diagnosed with cancer of the breast and spine. A.D.'s mother E.S. (grandmother), who lived in East Hampton, Long Island, was asked to move into the marital home in Huntington to care for her terminally ill daughter and the child. Grandmother cleaned the house, shopped, cooked household meals and looked after the child when A.D.'s illness prevented her from doing so.

After A.D.'s death in March 1998, father invited grandmother to stay on to help out with the then-four-year-old child's care and household duties. Grandmother agreed, and father, grandmother and the child lived together amicably in the Huntington home for the ensuing 3½ years. During that time, grandmother comforted, supported and cared for the motherless child. She got him ready for school, put him to bed, read with him, helped him with his homework, cooked his meals, laundered his clothes and drove him to school and to doctor's appointments and various activities, including gym class, karate class, bowling, soccer, Little League baseball and swimming class. She arranged and transported him to away-from-home or supervised at-home play dates; she took him to the public library and introduced him to the game of chess. From 1998 through 2001, the child and father spent entire summers at grandmother's home in East Hampton, where the child's maternal first cousins and other family members were frequently present as well.

By the fall of 2001, the relationship between grandmother and father had begun to sour. The reasons for this are disputed, but father and grandmother apparently differed over such matters as how to handle the child's sometime unwillingness to eat the food prepared for him at mealtime, and how strictly to enforce his bedtime, his tooth brushing regimen, homework routines and the like. In general, grandmother seems to have been more indulgent than father, who consequently came to view her as sabotaging his parental authority and competing with him for control over the household and, more importantly, the child. On February 24, 2002 father demanded that grandmother move out of the Huntington home immediately. Grandmother claims to have been completely surprised by this turn of events. She strenuously objected to leaving without at least saying goodbye to the child, who was away on a play date at the time, but she ultimately bowed to father's wishes and left with most of her belongings.

For the next seven or eight weeks, father forbade any contact between grandmother and the child. From April through December 2002, father allowed sporadic visits, which were limited in length and tightly supervised, and occasional telephone calls. According to grandmother, an incident in December 2002, when she experienced a four-hour wait for a scheduled visit with the child, was the "last straw." She decided to seek judicial intervention, a decision that she characterizes as having been arrived at most reluctantly. Accordingly, in January 2003, grandmother, who was 78 years old at the time, commenced this proceeding pursuant to Domestic Relations Law § 72 and Family Court Act § 651 for an order granting reasonable visitation with the child, who was then nine years old. Father opposed grandmother's request, and cross-moved for an order prohibiting grandmother from any contact whatsoever with the child.

Supreme Court appointed a law guardian for the child and conducted a lengthy, multi-day hearing. Among the numerous witnesses who testified were grandmother, father, his mother and stepmother, and two of the child's former babysitters. Supreme Court also held an in camera interview with the child in the presence of the law guardian, and considered the law guardian's report and recommendation. On December 1, 2004, Supreme Court granted judgment to grandmother, and ordered visitation according to a detailed schedule. Supreme Court concluded that

"[a]lthough mindful of [father]'s right to rear [the child] as he sees fit, and of his stated concern that [grandmother] undermines his parental authority, the Court finds that he has failed to present any credible evidence warranting either the termination of the relationship between [grandmother] and [the child] or the imposition of restrictions on the right of visitation. Instead, the evidence in the record establishes the existence of a very close, loving relationship between [grandmother] and [the child], and that [the child]'s best interest is served by granting [grandmother] regular, unfettered visitation" (6 Misc.3d 1030[A], 2004 N.Y. Slip Op 51846[U], *15, 2004 WL 3217794).

Upon father's appeal, the Appellate Division affirmed Supreme Court's judgment, but modified certain terms of the visitation schedule in deference to father's wishes, relying on Troxel. In response to father's constitutional challenge, the Appellate Division observed that

"[c]ontrary to the father's contention, this Court has determined that New York State's grandparent visitation statute, Domestic Relations Law § 72, is not facially invalid under [Troxel] even though it does not specifically require that parental decisions are to be given `special weight.' Our visitation statute, narrowly drafted to only afford a grandparent standing to sue for visitation when a child's parent has died or where `conditions exist which equity would see fit to intervene' (Domestic Relations Law § 72) and additionally requiring that after standing has been conferred, that the grandparent establish why visitation is in the child's best interest, necessarily gives the parent's decision presumptive weight" (27 A.D.3d 757, 758-759, 815 N.Y.S.2d 607 [2d Dept.2006] [citations omitted]).

The Appellate Division further rejected father's argument that Supreme Court abused its discretion in awarding visitation to grandmother.

II.

Section 72(1) of the Domestic Relations Law states that

"[w]here either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent or the grandparents of such child may apply to [supreme or family court] and . . . the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child."

Section 72(1) derogates from the common-law rule that "grandparents [have] no standing to assert rights of visitation against a custodial parent" (Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 180, 573 N.Y.S.2d 36, 577 N.E.2d 27 [1991]). The statute "rests on the humanitarian concern that [v]isits with a grandparent are often a precious part of a child's experience and there are benefits which devolve upon the grandchild . . . which he cannot derive from any other relationship" (id. at 181, 573 N.Y.S.2d 36, 577 N.E.2d 27 [internal quotation marks and citations omitted]).

Section 72 (1) "does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild" (Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380, 779 N.Y.S.2d 159, 811 N.E.2d 526 [2004] [internal quotation marks and citation omitted]). When grandparents seek visitation under section 72(1), the court must undertake a two-part inquiry. "First, [the court] must find standing based on death or equitable circumstances"; and "[i]f [the court] 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., 78 N.Y.2d at 181, 573 N.Y.S.2d 36, 577 N.E.2d 27).

But the courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. "It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement" (Lo Presti v. Lo Presti, 40 N.Y.2d 522, 526, 387 N.Y.S.2d 412, 355 N.E.2d 372 [1976]).

Here, grandmother has automatic standing under section 72(1) on account of A.D.'s death. Further, record evidence supports the determination of the courts below that visitation between grandmother and the child is in the child's best interest. The father in this case is...