Decision and OrderPURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.This case involves a Petitioner grandmother who seeks an order of visitation with her two biological grandchildren. The procedural history of the case is as follows. In 2008, the children, Albert and Linda, were removed from their biological parents and placed in foster care. Their biological parents’ rights were terminated in May 2011 and they were adopted in May 2013. In November 2013, Petitioner sought an order for visitation with the children. From June 2014 through March 2015, the court held an extensive hearing and found that sufficient efforts had been made by Petitioner to establish a relationship with her grandchildren. Accordingly, the court determined that Petitioner had standing to seek visitation. The court further found that based on the lack of recent or prolonged contact between Petitioner and the children and the negative impact that unsupervised contact between the parties would have on the children, that visitation between Petitioner and the children would not be in the children’s best interests. The petition was thus dismissed on its merits. For the purposes of this decision, it is essential to note that the court’s determination as to standing was based on events and actions that took place prior to the adoption of these children. At no time has the court considered efforts that may or may not have been made to establish a relationship with the children after they were adopted. To the contrary, Petitioner’s testimony as to her efforts during the prior hearing focused almost entirely on those that had been made up to March 2013.Petitioner appealed this Court’s determination that it was not in the best interests of the children to award visitation to Petitioner. The First Department Appellate Division affirmed by decision dated December 21, 2017. On June 27, 2017, Petitioner filed a motion requesting a new hearing for grandparent visitation based on a change in circumstances. The question was raised as to whether Petitioner had standing anew to seek visitation and the court directed counsel to submit briefs on the matter. Memoranda of law and supporting affidavits were submitted by counsel for Petitioner grandmother, counsel for respondent mothers and by each attorney for the child. Petitioner, respondents and the children were given an opportunity to be fully heard on this matter through their papers.For the reasons below, the court finds that petitioner lacks standing to seek visitation with her grandchildren over the objection of their parents. She has failed to provide facts which would support a determination that she has a sufficient existing relationship or has made a sufficient effort to establish one. Contrary to the assertion made by Linda’s attorney in her Affirmation in Support of Petitioner Grandmother’s motion, a de novo determination must be made as to standing. The court declines to confer such standing for the reasons that follow.In considering the question of standing, the court begins with the New York Domestic Relations Law §72. DRL §72 allows grandparents to seek visitation where one or both of the parents are deceased or “where circumstances show that conditions exist which equity would see fit to intervene.” In defining these type of “circumstances,” the Court of Appeals held that “an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship. It is not sufficient that the grandparents allege love and affection for their grandchild. They must establish a sufficient existing relationship with their 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.” See Emanuel S. v. Joseph E., 78 N.Y.2d 178, 182 (1991).In this case, no one has raised a question as to whether Petitioner’s right to visitation survives the adoption of her grandchildren by other persons. In fact, the Court of Appeals has held the such visitation rights do survive the adoption of the children. See Sibley v. Sheppard, 54 NY2d 320 (1981). In a similar case to the case at hand, Kareem W. v. Family Focus Adoption Servs. Inc. 24 Misc. 3d 1243(A) (Queens Co. Fam. Ct. 2009), the court provided a biological grandmother the opportunity to be heard as to visitation with a grandchild who had been adopted and found that “the standing requirements of DRL §72 must be applied strictly, particularly in the context of an adoption by non-family members, where no grandparent-grandchild relationship exists, where the grandparent has failed to make attempts to foster a relationship, despite opportunities to do so, and where the adoptive parents object to the grandparent’s proposed visitation as a serious hindrance to the integrity of their family unit and the finality of the child’s adoption, and as detrimental to the best interests of the child.” In Kareem W., the Court dismissed the grandmother’s petition as there was “no basis in law or equity to confer standing.” See Kareem W. v. Family Focus Adoption Servs. Inc. 24 Misc. 3d 1243(A), *14 (Queens Co. Fam. Ct. 2009).In the instant case, it is undisputed that in 2014, prior to the adoption of the children, this court found that Petitioner had made sufficient efforts to establish a relationship with her grandchildren so as to have standing to seek visitation. It is also undisputed that since 2014, Petitioner has not had any contact with her grandchildren. In her affidavit, Petitioner did not offer any proof as to an existing or recent relationship or as to recent efforts to establish such a relationship. To the contrary, Petitioner stated expressly that the only effort she made to establish a relationship with her grandchildren between 2014 and 2017 was through a letter that she wrote to the children’s parents in April 2017. Also, contrary to the assertion made by Linda’s attorney in her Affirmation in Support, Petitioner’s decision to hire a private investigator was made after the filing of this petition in an effort to effectuate service on respondents. Petitioner had an opportunity to put her strongest case forward in her moving papers and yet did not assert that she has made more than a single attempt to establish a relationship with her grandchildren since 2014. Petitioner has essentially relied on the prior determination as to standing and made arguments as to a material change of circumstances since the entry of the prior order and the best interests of the children.As such, the question here is whether standing survives the intervening adoption of the children or whether the children’s adoptive parents’ rights to raise their children absent court intervention requires a new determination as to standing. In the seminal grandparent visitation case of Troxel v. Granville, the United States Supreme Court held “The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.” See Troxel v. Granville, 530 U.S. 57 (2000).Regarding the nature of non-parent visitation rights, the Court notes that if a non-parent seeks custody of a child, he/she must first show that extraordinary circumstances exist which would confer standing on the petitioner and allow for a best interest determination as to whether custody should be granted. As the Court of Appeals held in Bennet v. Jeffreys, “The State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances.” See Bennet v. Jeffreys, 40 NY2d 543, 544 (1976). There is no language in Bennet v. Jeffreys which circumscribes or limits the group of non-parents who may petition for custody of a child and seek an extraordinary circumstance finding. On the other hand, visitation, which arguably reflects a lower level of intrusion into a parent’s rights, has a clearly delineated, and narrow, group of non-parents who may seek to establish standing. In fact, the Domestic Relations Law limits that group of non-parents to grandparents (DRL §72) and siblings (DRL §71).In understanding the court and the legislature’s approach to non-parent visitation cases, it is helpful to look to the dicta of Alison D. v. Virginia M. (which was overturned in 2016 by Brooke S.B. v. Elizabeth A.C.C.). Specifically, the court focused on whether visitation with a non-parent would “limit or diminish the right of the concededly fit biological parent to choose with whom her child associates.” See Alison D. v. Virginia M., 77 NY2d 651, 656 (1991) (overturned by Brooke S.B. v. Elizabeth A.C.C., 28 NY3d 1 (2016)). This follows the approach taken in Troxel which held that “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” See Troxel at 68-69.Thus, a parent has the right to make decisions about who cares for and associates with his/her child. If the event that something “extraordinary” has happened, such as abandonment, unfitness, surrender or ongoing neglect, any person may petition the court for such a determination (that of extraordinary circumstances) and if the court so determines, then that person has standing to seek custody. If, however, there have not been extraordinary circumstances which would justify depriving a parent of their custodial rights, then that parents retains the right to make decisions as to the people with whom their child associates.As the Second Department explained in the Appellate Division decision of Emmanuel S. v. Joseph E. “Had the Legislature intended to extend the right to seek judicial intervention to “any grandparent,” it could have easily so specified. Since it did not do so, and since we presume that the phrase: “or where circumstances show that conditions exist which equity would see fit to intervene” (L 1966, ch 631, as amended by L 1975, ch 431), was intended to have some meaning (see, McKinney’s Cons Laws of NY, Book 1, Statutes §231), we conclude that a petition for an order authorizing visitation pursuant to Domestic Relations Law §72 must demonstrate the existence of some circumstance or condition, such as untoward disruption of an established grandparentgrandchild relationship because of, e.g., a change in the status of the nuclear family, or interference with a “derivative” right, or some abdication of parental responsibility, before judicial examination of the best interests of the child with its attendant trauma, increased animosity, and financial drain is to be undertaken. See Emmanuel S. v. Joseph E., 161 A.D. 2d 83, 87 (2d Dep’t 1990).Notwithstanding the above, the New York State Legislature conferred upon grandparents and siblings a statutory right to visit with children over a parent’s objection where the facts supported such a right. In the case of grandparents, the Court of Appeals found that as to the Domestic Relations Law, “Its underlying design is to establish a procedural vehicle through which grandparents might assert that visitation of the child or children residing in this State is warranted (see Boardman, New York Family Law, §45, subd [1], n 27, p 185). Prior law had made no such provision, thereby depriving grandparents of even making an application for the right to visit their grandchildren.” See Lo Presti v. Lo Presti, 40 NY2d 522, 526-27 (1976).Section 72 of the Domestic Relations Law was enacted to protect grandparent visitation rights over the objection of a child’s parents. It attempts to balance the rights of grandparents to request access to their grandchildren with a parent’s constitutional right to the care, custody and control of their children. It thus stands to reason that a parent must be afforded the opportunity to be heard as to a grandparent’s standing to request visitation. Where, as here, the child has a new set of parents who take the position that Petitioner grandmother does not have the requisite standing under the statute, the court should not rely on a prior determination but must instead, consider the current facts, and make a new decision as to standing.Although in 2014, there were facts which supported a determination that sufficient efforts were made by Petitioner to establish a relationship with her grandchildren, that is no longer the case. Petitioner acknowledges that she has not had any contact with Albert or Linda since at least 2014 and she does assert, nor does the court find, that she has made sufficient efforts to establish a relationship with them. In Kareem W., the court found that “where contact is infrequent or occasional, as it is here, the appellate courts have held that only a “superficial” relationship is formed, and in such circumstances parents “have the right to choose with whom their children should associate,” and that “Domestic Relations Law §72 does not give the petitioners the right to interfere with that choice” See Kareem W. at *10. Indeed, here, Petitioner grandmother has had no relationship with the children at all and is a mere stranger to them. Accordingly, the petition is dismissed for Petitioner’s failure to establish standing pursuant to section 72 of the Domestic Relations Law.Dated: February 1, 2019
