Smith v. Jones

• Decision Date: 20 May 1992
• Citation: 155 Misc.2d 254,587 N.Y.S.2d 506
• Parties: . John JONES, Respondent. * Family Court, Nassau County
• Court: New York Family Court

Page 506

587 N.Y.S.2d 506

155 Misc.2d 254

In the Matter of a Proceeding under Article 6 of the Family Court Act, Mary SMITH, Petitioner, v. John JONES, Respondent. ^* Family Court, Nassau County.

May 20, 1992.

Goodman Goodman & Jurist, Garden City, for petitioner.

Guggenheim & Guggenheim, Merrick, for respondent.

Howard E. Sayetta, Syosset, law guardian.

JOSEPH A. De MARO, Judge.

This is a proceeding by the maternal grandmother of two children for an order of this Court to provide her with visitation with the children over the objection of the children's father, the Respondent.

The Court heard from twelve witnesses including the parties, family members, the independent forensic evaluator and the experts retained by each party. The matter was heard on March 13, 16 and April 10, 1992.

The parties were represented by private counsel and an experienced Law Guardian represented the children. The probation report and forensic evaluation reports were a Court exhibit pursuant to the stipulation of the parties.

Respondent married Petitioner's daughter Paula in 1989. There are two children of their marriage, Arnold, born May 1989 and Alice, born July 1990.

In December 1990, Paula disappeared. At the time of her disappearance, Arnold was 18 months old and Alice was 5 months old. The investigation of this disappearance is an open police matter; Respondent has never been charged with any complicity in the occurrence. A petition brought by Petitioner herein seeking custody of the children based on the principles of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 (1976), was dismissed by the Court as conclusory, (order dated December 2, 1991). There is no petition against Respondent under Article 10 of the Family Court Act; therefore Respondent is, in the eyes of the law, a fit parent with custody of his two children. In February 1991, and thereafter, Respondent refused to allow visitation between Petitioner and the children. Respondent avers that Petitioner has accused him and told others that he had caused Paula's disappearance and he fears Petitioner will convey such feelings to the children if allowed visitation. Petitioner filed visitation petitions in the Family Court and by temporary order made on May 18, 1991 Judge Decker of this Court granted Petitioner supervised visitation at E.A.C., 50 Clinton Street, Hempstead, New York. By order dated December 2, 1991, this Court terminated the Court ordered visitation.

Domestic Relations Law Section 72 sets forth the criteria in grandparent visitation matters. See, Emanuel S. v. Joseph E., 78 N.Y.2d 178, 573 N.Y.S.2d 36, 577 N.E.2d 27 (1991). The statute sets forth two alternative conditions before the children's best interest may be considered; one of the child's natural parents is dead or "circumstances show that conditions exist which equity would see fit to intervene."

At the end of the proceedings on March 16, 1992, this Court decided that the disappearance of Paula was the kind of circumstance that would prompt equity to intervene. The Court further found that the actions of the Petitioner wherein she expressed her view that Respondent was involved in Paula's disappearance, were not sufficient to deny her equitable consideration on the "clean hand" and/or "he who seeks equity must do equity" bases.

The Court therefore, must address the best interest consideration. The usual issues relating to best interest involve natural parents and are geared toward determining the form of visitation best suited for the child. With natural parents, there is a very strong presumption that visitation should take place. Indeed it is said that a complete denial of visitation between a child and a natural parent is a drastic measure. Nacson v. Nacson, 166 A.D.2d 510, 560 N.Y.S.2d 792 (2d Dept.1990).

The considerations for grandparent visitation are different. Grandparent visitation is a creature of statute; the parent-child relationship however precedes government itself and has been described as an "intrinsic human right." (Smith v. Organization of Foster Families, 431 U.S. 816, 845, 97 S.Ct. 2094, 53 L.Ed.2d 14.) A fundamental constitutional right regarding grandparents and grandchildren as similar to that between a parent and child has not been articulated. When considering the "best interest" issue as to natural parents, the importance and veneration given to the relationship and often the severe psychological impact of severing such relationship often prompts the court to provide visitation even though there may be attendant short term complications and problems (i.e. supervised--or other restrictions). The "problems" are dealt with because the objective is to establish and/or maintain the life long natural bond in child parent relationships. Furthermore, it has been established that if the bond is broken it may cause the child psychological damage at some later point in his or her life. In grandparent matters, the best interest question involved is much more objective and "now" oriented. Is it beneficial to this child to visit with this grandparent now? The relationship is indeed important, but the parent-child bond is inestimably more important by tradition and by simple reality, than that of the grandparent-child.

The testimony demonstrated that prior to the disappearance, Petitioner had substantial contact with the children and that it was positive in nature. Since the disappearance she has felt that Respondent caused the disappearance and has articulated that feeling to Respondent and to others.

The Court finds, on the basis of the reports and testimony of Joseph Schechter and Ellen Rosenstein (the independent forensic evaluator and probation investigator respectively) that Petitioner's feelings about Respondent are very intense, and that her daughter's disappearance having been without any finality, has made it more difficult for her to come to terms with it.

Mr. Schechter opined that Respondent's relationship with the children is of crucial importance. There is a need for the children to bond to him as their primary caretaker, replacing Paula who is no longer in their lives. Further, he testified, that Respondent is also going through a difficult time as he becomes the primary caretaker of his children while at the same time suffering the severe stress in the loss of his wife.

Dr. Nola Nauryon (an expert witness) testified for Respondent. She opined that the Court ordered visitation would add great stress to the loss of his wife. She opined that placing such stress on him would impact directly on the children and would adversely affect his ability to address their needs. Dr. Nauryon was not an independent evaluator but the Court found her professional and credible.

The Court has observed the Petitioner both directly as a witness and through the eyes of other witnesses. The Court finds on the basis of all the testimony that while she understands the importance of the bond between Respondent and the children she would attempt to replace Paula in their feelings and she would not be able to avoid conveying her intense feelings against Respondent to them.

In two significant ways visitation would be detrimental to the children: first, it would directly interfere with the parental relationship and confuse the children in their relationship and feelings for their father; and, second, it would create great difficulty for Respondent in his efforts to properly raise the children.

All of the independents, including the Law Guardian, recommended supervised visitation.

Supervised visitation is a device used to maintain parental contact when it is felt that the child would come to some harm if a third person were not present. It is meant to overcome short term problems between parent and child--a bridge to shore up and assist the long term relationship above described. While a recommendation for supervision does not per se negate best interest, such is a clear finding that the children would be at risk if left in Petitioner's control without the protection of another person. The risk here is that Petitioner would convey her feelings to the children and thus undermine Respondent's relationship with them. The credible evidence supports this trepidation.

Of course, mere animosity between parent and grandparent is not sufficient to determine that it is not in the children's best interest to visit the grandparents--Vacula v. Blume, 53 A.D.2d 633, 384 N.Y.S.2d 208 (2d Dept.1976); Lo Presti v. Lo Presti, 51 A.D.2d 578, 378 N.Y.S.2d 487 (2d Dept.1976). Animosity, however, is very different from accusations of uxoricide especially where there is a danger, as here presented, in undermining the relationship already so vulnerable due to the disappearance of the mother.

Though the primary focus is the children's best interest, the mental status of the Respondent is not irrelevant to these proceedings. Indeed as primary caretaker, his overall situation is of singular import and also redounds upon the children's best interest.

The Court finds that visitation with Petitioner would also adversely affect Respondent's relationship with his children and his ability to guide and move them through this time when they too suffer the loss of their mother.

The risks are real, not illusory. The Court can not justify placing these children at further risk in...