Boden v. Jackson-Silver

291 A.D.2d 812, 737 N.Y.S.2d 462, 2002 N.Y. App. Div. LEXIS 1068

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2002
• Status: Published

Opinion

—Appeal from an order of Family Court, Monroe County (Kohout, J.), entered December 29, 2000, which granted in part respondent’s motion and dismissed the petition to the extent that it alleges that Domestic Relations Law § 72 is unconstitutional on its face.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying respondent’s motion in part and reinstating the petition to the extent that it alleges that Domestic Relations Law § 72 is unconstitutional as applied to this case and as modified the order is affirmed without costs and the matter is remitted to Family Court, Monroe County, for further proceedings in accordance with the following memorandum: Petitioner commenced this proceeding seeking to terminate the court-ordered visitation between her child and respondent, the child’s paternal grandmother. Family Court properly granted that part of respondent’s motion seeking dismissal of the petition to the extent that it alleges that Domestic Relations Law § 72 is unconstitutional on its face (see, Matter of Morgan v Grzesik, 287 AD2d 150). The court erred, however, in granting that part of the motion seeking dismissal of the petition to the extent that it alleges that the statute is unconstitutional as applied to this case, and thus we modify the order accordingly. That determination cannot be made until a hearing on the petition is conducted, and thus we remit the matter to Family Court, Monroe County, for a hearing on the petition. Present— Pine, J.P., Wisner, Kehoe, Gorski and Lawton, JJ.