ORDER By Petition filed February 22, 2022, Petitioner seeks an Order of this Court awarding her visitation. A hearing on the Petition was held over several days, commencing January 9, 2023. Petitioner, E.O. is the maternal grandmother of G.D. Respondent J.K. is the child’s mother. G.D. is six years old. Petitioner and Respondent each testified in this matter. Petitioner has standing to seek an Order of Visitation pursuant to Domestic Relations Law §72, as the father of the subject child, Paul Dabbs, is deceased. Testimony of Petitioner, E.O. Petitioner testified the child and Respondent resided with her from G.’s birth in 2016 until 2019, a period of approximately 2 ½ years. The relationship between Petitioner and Respondent ended in 2019, and Respondent moved out of Petitioner’s home with G. in 2020. Petitioner testified Respondent was stealing from family members and she had the police kick in her door. Petitioner acknowledged she has not had contact with G. since Respondent moved out of Petitioner’s home. Petitioner asserted she would like to establish a relationship with G. and that the child’s cousins ask for her. She attempted to see G. about a month after Respondent moved out. According to Petitioner, Respondent agreed to allow visitation but only if Petitioner gave her back her property. However, no visitation occurred and from that point forward, Respondent refused all contact, although Petitioner testified she kept asking to see G.. Petitioner testified G. is a special needs child. Respondent kept making oral promises that she would be able to see G.. Under cross-examination, Petitioner testified she was terrified of the damage Respondent would or did cause the family, and that she had an Order of Protection against Respondent in May 2020. Petitioner testified she sought an Order of Protection against the Respondent in May of 2020. She further testified she has had no contact with G., although Petitioner has made attempts to visit. She further testified she lied about the dates Respondent and G. resided with her. It was actually from February 2017 until March 2020. Between May 2020 and February 2022 She did not file a petition seeking visitation. Petitioner informed the Court Respondent’s phone number keeps changing. She sent a letter to Respondent asking her to remove Respondent’s property from Petitioner’s house. Petitioner testified she did not ask for visitation because she had an Order of Protection against Respondent, and believed she was not allowed to speak to Respondent as a result. Under questioning by the Attorney for the Child, Petitioner testified G. lived downstairs from Petitioner, and Respondent did not pay rent or contribute anything to the house. Petitioner acknowledged her son Timothy, who resides with her, has a felony criminal record. Testimony of Respondent, J.K. Respondent testified she resides with G.D., her fiance and stepson. G.D. is six years old and is in Special Education classes. She has an IEP for occupational therapy and speech therapy. Her classes are small, with maximum support available. G.D. has autism and issues with sensory processin G.D. Her communication is at the level of a three year old. G.D. also has equilibrium problems. G.D. has trouble communicating, but uses some sign language. She is not capable of expressing herself if she gets hurt. If something happens she gets scared. She also has other issues besides those noted here. Respondent testified she resided with Petitioner from December 2016 until November 2018. She moved out of the residence at that time and into a domestic violence shelter because Petitioner’s boyfriend grabbed Respondent by the throat during an incident a Petitioner’s home. In March 2019 she moved back to Petitioner’s residence. According to Respondent, she resided in the basement, in half of a room with a half bath (no shower or tub). She showered in the 1st floor bathroom, when she was allowed on the first floor. Respondent testified she was only allowed on the first floor when given permission at certain times. Respondent testified Petitioner had minimal contact with either Respondent or G.D.. The child was usually asleep by the time Petitioner returned home from work at around 7 p.m. Respondent testified Petitioner did not help care for G.D.; that Respondent alone took care of the child. According to Respondent, her brother was using drugs and there was repeated domestic violence in Petitioner’s household, sometimes in the presence of Respondent and G.D.. Respondent testified that Petitioner would often interact with her other grandchildren, but would avoid interacting with G.D.. Respondent would ask Petitioner if G.D. could go with her and the other grandchildren but Petitioner would say no. Respondent testified after she moved out she returned to pick up her personal belongings and property and found her room destroyed, her safe broken and clothing trashed. She called police and made a report. The night before this incident her brother was arrested for Identity Theft. During the arrest, police also found drugs. It was around this time that Petitioner sought an Order of Protection against Respondent.1 Respondent testified she has had no contact with Petitioner since moving out of Petitioner’s residence, and Petitioner blames Respondent for the arrest of Respondent’s brother. With regard to her telephone number, Petitioner has the phone number of Respondent’s fiance and Petitioner could always contact her through him. Respondent testified Petitioner does not know her daughter and G.D. does not know Petitioner. According to Respondent, Petitioner has not seen or spoken with G.D. in three years. Petitioner has not sent cards or gifts to G.D., including Christmas and G.D.’s birthday. Respondent plans to relocate to Florida. She has a teaching degree and can work in Florida. Under cross examination, Respondent testified she has had no relationship with Petitioner for three years. She acknowledged her brother was an impediment between her and Petitioner, and she would have a strained relationship with Petitioner regardless of her brother. When she and G.D. resided in Petitioner’s home, Petitioner did not interact with the child or with Respondent. Petitioner never put G.D. to sleep, was not involved in taking care of the child. On the rare occasion Petitioner would spend time with G.D., other family members would interact with G.D.. When grandparents seek visitation pursuant to Domestic Relations law §72, the Court must make a two part inquiry. See, Brancato v. Federico, 118 A.D.3d 986 (2014). First, the Court must determine whether the petitioner has standing to seek visitation based upon either the death of one of the parents, or “where circumstances show that conditions exist which equity would see fit to intervene.” (DRL §72(1); Brancato v. Federico, supra; Steinhauser v. Haas, 40 A.D.3d 863 [2007].) If the Court determines that such standing exists, then the Court must determine what, if any visitation would be in the child’s best interests. See, Steinhauser v. Haas, supra; Matter of E.S. v. P.D., 78 N.Y.2d 178 (2007). Further, when determining whether an award of visitation to a grandparent is in the child’s best interests, “[T]he 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.” Steinhauser, supra, at 864, quoting E.S. v. P.D., supra, at 157. “[W]hile…the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation.” Matter of E.D. v. P.D., supra, at 157; Steinhauser v. Haas, supra, at 864. ‘The question of visitation, which involves a determination of what is in the child’s best interests, is left to the discretion of the court’” See, Matter of Poppe v. Ruocco, 37 A.D.3d 608 (2007) quoting Matter of Weis v. Rivera, 29 A.D.3d 812 (2006); LoPresti v. LoPresti, 40 N.Y.2d 522, 527 (1976). “An essential part of this inquiry is whether a meaningful relationship exists between the petitioning grandparents and the child.” See, Matter of Brancato, supra; Matter of Steinhauser, supra, quoting Matter of Weis v. Rivera, supra; Matter of Principato v. Lombardi, 19 A.D.3d 602 (2005). Additionally, the Court must consider “the nature and basis of the parents’ objection to visitation.” Matter of Brancato, supra, at 986. The Court’s determination concerning whether to award visitation ” ‘depends to a great extent upon its assessment of the credibility of the witnesses and upon the assessments of the character, temperament, and sincerity of the parents’.” See, Matter of Thomas v. Thomas, 35 A.D.3d 868 (2006) quoting Maloney v. Maloney, 208 A.D.2d 603, 603 (1994); Matter of McMillan v. Rizzo, 31 A.D.3d 555 (2006); Steinhauser, supra. Here, Petitioner standing to seek visitation with G.D. pursuant to Domestic Relations Law §72. However, she did not establish a relationship exists between her and G.D.. Although the evidence shows Respondent and G.D. resided in Petitioner’s home for approximately 3 non-consecutive years from December 2016 to March 2020, the Credible testimony of Respondent shows Petitioner had no relationship with G.D.. Petitioner did not spend time with the child; rarely interacted with her and restricted Respondent’s movement within the household. Instead, Petitioner testified she would like to establish a relationship with her grand daughter. In Fitzpatrick v. Fitzpatrick, 137 A.D.3d 784 (2016), the Appellate Division explained “In cases where such a [grandparent-grandchild] relationship has been frustrated by a parent, the grandparent must show, inter alia, that he or she has made a sufficient effort to establish [a relationship with the child], so that the Court perceives [the matter] as one deserving the court’s intervention” (Matter of Brancato v. Federico, 118 A.D.3d 987 [2016] [internal quotation marks omitted]; see Matter of Emanuel S. V. Joseph E., 78 N.Y.2d 178 [1991]. ” ‘The evidence necessary will vary in each case but what is required of grandparents must always be measured against what they could reasonably have done under the circumstances.’ “ Matter of Bender v. Cendali, 107 A.D.3d 981, 982 [2013] quoting Matter of Emanuel S. V. Joseph E., 78 N.Y.2d 178 at 183.See, Matter of Lipton v. Lipton, 98 A.D.3d 621, 622 (2012). [Fitzpatrick, supra at 785.] In this matter, Petitioner alleges Respondent cut off all contact with G.D. beginning in 2020. However, the credible testimony of Respondent shows Petitioner failed to make any effort to establish a relationship with G.D.. Indeed, as noted above, even during the time Respondent and G.D. resided with her, Petitioner had little contact or interaction with G.D., and went so far as to restrict Respondent’s movement within the household. After Respondent and the child left Petitioner’s home, Petitioner made no effort at all to establish any relationship with G.D.. Petitioner testified she obtained an Order of Protection against Respondent. She further testified she believed that prevented her from contacting Respondent to arrange visitation. But she made no effort to arrange visitation through a third party, and waited for over a year to even file a petition. Even after the Order of Protection was no longer in effect, Petitioner made no effort to arrange visits. Additionally, the credible evidence established that G.D. is a special needs child with Autism, who has difficulty communicatinG.D. She scares easily. Respondent Credibly testified to of domestic violence in Petitioner’s home, including where Petitioner’s boyfriend grabbed Respondent by the throat, and where Respondent’s personal property in the home was damaged. It does not appear to be a safe environment for G.D., given her issues. After a careful and considered review of the evidence presented in this matter, the Court finds an award of visitation to Petitioner would not be in the best interests of G.D.. Petitioner has not established that a relationship exists or ever existed between herself and G.D.. Likewise, Petitioner did not establish Respondent has frustrated Petitioner’s attempts to establish such a relationship. The credible testimony shows Petitioner made no effort to establish a relationship with her grandchild. Moreover, the credible evidence established G.D. to be a special needs child with autism, who has difficulty communicating and who is emotionally fragile as a result. The Court also finds the acrimony between the parties is severe and, while that may not be sufficient by itself to deny visitation to Petitioner, coupled with all of the other evidence, and in consideration of the totality of the circumstances, the Court finds an award of visitation to Petitioner is clearly not in the best interests of the child. Finally, the Court found the testimony of Respondent to be credible in its entirety, while Petitioner’s testimony was less than credible in that she gave different answers to similar questions such as the months and years Respondent and G.D. resided with her, and, in response to one question, admitted she did not tell the truth. It is therefore Ordered, the request by Petitioner for an Order of Visitation is denied and the petition filed on February 22, 2022 under docket V-02195-22 is dismissed. This constitutes the Decision and Order of the Court. Order was mailed to parties/counsel on __, 2023 by: __ Part 2. Pursuant to §1113 of the Family Court Act, “an appeal must be taken within 30 days of receipt of the order by appellant in court, 35 days from the mailing of the order to the appellant by the clerk of the court, or 35 days after service by a party or law guardian upon the appellant, whichever is earliest.” Dated: February 22, 2023
