In re Jessica R.

163 A.D.2d 553, 558 N.Y.S.2d 616, 1990 N.Y. App. Div. LEXIS 8946

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 19, 1990
• Status: Published

Opinions

In a habeas corpus proceeding pursuant to Domestic Relations Law §72 to obtain visitation rights, the paternal grandparents appeal from an order of the Family Court, Westchester County (Bellantoni, J.), dated April 13, 1989, which granted the application of the Law Guardian on behalf of the child to, in effect, vacate a prior order of the same court, entered January 5, 1989, awarding the paternal grandparents temporary visitation with their granddaughter pending the hearing and determination of a child abuse and neglect proceeding pending against the child’s father.

Ordered that on the court’s own motion, the appellants’ notice of appeal is treated as an application for leave to appeal, the application is referred to Justice Rubin, and leave to appeal is granted by Justice Rubin (CPLR 5701 [b] [1]); and it is further,

Ordered that the order dated April 13, 1989, is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Westchester County, for an evidentiary hearing to determine what, if any, visitation arrangements with the paternal grandparents will best serve the interests of the child; and it is further,

Ordered that the order of visitation entered January 5, 1989, is reinstated pending the further order of the Family Court, Westchester County, after a hearing.

In November 1988 the paternal grandparents petitioned the Supreme Court, Westchester County, for the right to visit their granddaughter, Jessica. The matter was subsequently referred to the Family Court, Westchester County. After conducting an evidentiary hearing, the Family Court found that it would be in the child’s best interest to continue the relationship with her paternal grandparents. By order entered January 5, 1989, the paternal grandparents were awarded temporary visitation with Jessica pending the hearing and determination of an abuse and neglect proceeding against the child’s father. Since the father’s supervised visitation rights had previously been suspended, the petitioners’ visitation rights were conditioned upon their adherence to the court’s directive not to permit or facilitate any contact between Jessica and her father.

Approximately three months after the grandparents were awarded visitation, the Law Guardian applied for "a stay and modification” of the temporary order of visitation based upon the controverted affidavits of the child’s mother and treating therapist. The mother accused the paternal grandparents of intentionally violating the court’s directive by permitting a family friend to play for Jessica a tape-recorded message from her father. Additionally, the child’s therapist, who had been retained by the mother, recommended a suspension of visitation because Jessica’s behavior in therapy had purportedly begun to deteriorate at the time she resumed visitation with her paternal grandparents. However, the therapist candidly conceded that she could not “unequivocally state that visitation with her paternal grandparents bears a direct relationship to her recent behavior”. It is noteworthy that the therapist had never observed any interaction between the grandparents and Jessica, and the child had also experienced radical changes in her life-style. As pointed out in the papers submitted in opposition to the Law Guardian’s application, Jessica had not seen her father for several months and she was no longer residing in the marital residence or attending nursery school. An affidavit by a board-certified psychiatrist, proffered by the paternal grandparents, placed in issue the underlying foundation for the therapist’s conclusions.

Upon a review of this record, we find that it was an improvident exercise of discretion to terminate the paternal grandparents’ visitation privileges without first conducting a hearing to determine whether this would be in the best interests of this six-year-old child (see, Schoffman v Schoffman, 137 AD2d 423; People ex rel. Smith v Kudler, 71 AD2d 634). Nor did the movants’ papers suffice to warrant a temporary stay of the January 5, 1989, visitation order, pending a hearing to resolve the factual issues arising from the conflicting affidavits. Rubin, J. P., Eiber and Rosenblatt, JJ., concur.