Scranton v. Hutter
| Decision Date | 18 January 1973 |
| Citation | 339 N.Y.S.2d 708,40 A.D.2d 296 |
| Parties | Application of Robert K. SCRANTON and Marjorie Scranton, Respondents, v. Roger L. HUTTER and Patricia Hutter, Appellants. |
| Court | New York Supreme Court — Appellate Division |
Benjamin Galperin, Buffalo, for appellants.
Carnahan, Di Giulio, LaFalce, Moriarty & Hill, Buffalo (Robert B. Moriarty, Buffalo, of counsel), for respondents.
Before GOLDMAN, P.J., and DEL VECCHIO, MARSH and MOULE, JJ.
Petitioners, as maternal grandparents of two infants, sought to obtain visitation rights in respect to them pursuant to Section 72 of the Domestic Relations Law. One of the infants, a boy, was born on August 10, 1961 and the other, a girl, on July 18, 1962 of the marriage of the petitioners' daughter and Roger L. Hutter, Sr., one of the respondents. Petitioners' daughter died on May 13, 1965 and in June, 1968 Roger L. Hutter, Sr. married Patricia Williams and they continued to reside at 521 Adams Street in the City of Tonawanda where the had resided with his first wife. Patricia Hutter, the second wife, legally adopted the two children by order of the Surrogate's Court, Erie County, dated April 26, 1971.
From the time of second marriage, Roger L. Hutter, Sr. and his second wife began to refuse to allow petitioners to visit with their grandchildren. The last holiday the petitioners were able to spend with their grandchildren was Christmas Day, 1969 and the last time the petitioners were able to see their grandchildren was on January 31, 1970.
The question before us is whether because of the adoption of the two children by Patricia Hutter, the petitioners are precluded from seeking any visitation rights under Section 72 of the Domestic Relations Law which reads as follows:
'Where either or both of the parents of a minor child, residing within this state, is or are deceased, a grandparent or the grandparents of such child, who is or are the parents of such deceased parent or parents, may apply to the supreme court for a writ of habeas corpus to have such child brought before such court; and on the return thereof, 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.'
Special Term refused to dismiss the proceeding and in so doing disregarded the decisions in People ex rel. Levine v. Rado (54 Misc.2d 843, 283 N.Y.S.2d 483) and People ex rel. Herman v. Lebovits (66 Misc.2d 830, 322 N.Y.S.2d 123). Both of these cases held that an adoption order superseded any right that grandparents had under Section 72 of the Domestic Relations Law. Petitioners maintain that such a determination is harsh, and it obviously may be in certain circumstances.
We have sought to ascertain the intention of the statute in this situation. The only relevant legislative history that we have been able to obtain is continued in the New York State Legislative Annual for 1966. At page 14 there is a memorandum by Assemblyman Noah Goldstein in support of 1966 Assembly Intro. 264, Print 7112, the bill enacted as chapter 631 of the Laws of 1966, referred to in the Consolidated Laws as Section 7i of the Domestic Relations Law. It states that:
'* * * the right to visit their grandchild would be solely in the discretion of the Court. The Court may deny the application by the grandparents if the Court is of the opinion that it would not be in the best interest of the grandchild. * * * This bill retains discretion in the courts to grant or deny such visitation, and presents a worthwhile purpose. * * *
There are many cases on record where parents who have lost their only child have been unable to apply to the Courts for leave to be granted the right to visit the children of their deceased child. The Courts in these cases, although sympathetic to the application made by the grandparents, stated that the Court had no jurisdiction to entertain the application because their (sic) was nothing in the law giving them the right to rule on such applications. Grandparents in this manner have been deprived unjustly of the rights to visit their grandchildren. How tragic it must be when grandparents lose their only child and not be able to visit the child or children of their deceased child because there is no law enacted by the legislature to give them at least the opportunity to apply to the Court for this right.'
Section 72 provides for the relief sought after notice to any parent having custody of the grandchild. This implies that a situation such as it is here presented was intended to be covered and it is not subject to an automatic limitation by an adoption order. If we were to read into the statute such a limitation, its purpose and effect would be vitiated in all cases where the surviving parent remarried and the stepparent adopted the child. We believe that if its were the intent of the legislation to exempt such cases from its...
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