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ALBANY, N.Y. � New York’s grandparent visitation statute Thursday withstood a major constitutional challenge when the Court of Appeals held that the law adequately safeguards parental rights. In a 6-0 opinion, the Court said Domestic Relations Law � 72 presumes that a parent’s wishes represent the best interests of the child and therefore does not give grandparents automatic visitation rights over a parent’s objections. Still, the court said there are times when the government can intrude and determine a child’s best interests despite the protestations of a fit and competent parent and bestow grandparent visitation rights regardless of the parent’s wishes. And, it said, Matter of E.S. v. P.D., 7, is such a case. The Appellate Division, Second Department, case tested the continued viability of Domestic Relations Law � 72 in light of Troxel v. Granville, 530 U.S. 57, a 2001 U.S. Supreme Court decision. In Troxel, the justices shot down a “breathtakingly broad” Washington state statute that allowed any person to be awarded visitation rights if the court decided it would be in the child’s best interests. Thursday, the Court of Appeals held that � 72 does not suffer from the Troxel infirmity. “The problem in Troxel was . . . not that the trial court intervened, but that it failed to employ ‘the traditional presumption that a fit parent will act in the best interest of his or her child’ when it did,” Judge Susan Phillips Read wrote for the court. Judge Read said that in Troxel the trial court started with a presumption in favor of grandparent visitation and then placed a burden on the parent to disprove that visitation would be in the best interests of her children. In contrast, she said the court in Matter of E.S. began with a “strong presumption that the parent’s wishes represent the child’s best interests, as our statute requires.” Matter of E.S. arose from Long Island and centers on a now 13-year-old boy. court records show that in 1997 the boy’s mother was diagnosed with cancer. The maternal grandmother, who lived in East Hampton, was asked to move into the marital home in Huntington to care for her daughter and the child, who was then 4 years old. The grandmother cooked, cleaned, shopped and looked after the child while her own daughter fought terminal illness, records show.
The court began with a ‘strong presumption that the parent’s wishes represent the child’s best interests, as our statute requires.’

Judge Susan Phillips Read


After the mother died in March 1998, the father, P.D., invited his mother-in-law to stay. For the next 3 1/2 years, she lived with her grandson and son-in-law. The grandmother, according to the record, got the child ready for school, put him to bed at night, helped with his homework, cooked his meals, drove him to doctor appointments and extracurricular activities, arranged play dates and taught him to play chess. RELATIONSHIP CHANGED But by the fall of 2001, the relationship between the father and mother-in-law soured, apparently because P.D. thought the grandmother was overly indulgent and was sabotaging his parental authority. Among other issues, P.D. did not want his child exposed to an uncle he deemed dangerous. In February 2002, P.D. ordered his 77-year-old mother-in-law to leave. She responded with a petition under Domestic Relations Law � 72 and Family Court Act � 651. Suffolk County Supreme Court Justice Sandra Sgroi adopted the law guardian’s position that the boy would benefit from “regular, unfettered visitation” with his grandmother and awarded E.S. substantial unsupervised visitation. The Appellate Division, Second Department, upheld the visitation award, with some modifications. At the Court of Appeals, the key question was whether Domestic Relations Law � 72 is constitutional. Here, Judge Read said, Family Court was appropriately “mindful” of parental authority and made its determination only after examining the “extraordinarily close relationship” between the grandmother and child. “While this presumption [of parental authority] creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother,” Judge Read said. “The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child’s best interest for his relationship with grandmother to continue � e.g., the reasonableness of father’s objections to grandmother’s access to the child, her caregiving skills and attitude toward father, the law guardian’s assessment, the child’s wishes � before making a judgment granting visitation.” John Caher is a reporter with the New York Law Journal, a Recorder affiliate.

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