Matter of Moskowitz v. Moskowitz

128 A.D.3d 1070, 9 N.Y.S.3d 674

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 2015
• Docket: 2014-04343
• Status: Published

Opinion

Appeal from an order of the Family Court, Kings County (Daniel Turbow, J.), dated April 3, 2014. The order, without a hearing, denied the petition pursuant to Domestic Relations Law § 72 (1) for grandparent visitation with the six subject children and dismissed the proceeding.

Ordered that the order is affirmed, without costs or disbursements.

“When a grandparent seeks visitation pursuant to Domestic Relations Law § 72 (1), the court must make a two-part inquiry” (Matter of Brancato v Federico, 118 AD3d 986, 986 [2014] [internal quotation marks and citation omitted]). “First, it must find that the grandparent has standing, based on, inter alia, equitable considerations” (id. at 986 [internal quotation marks and citation omitted]). “If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child” (Matter of Gray v Varone, 101 AD3d 1122, 1123 [2012]).

“In considering whether a grandparent has standing to petition for visitation based upon ‘circumstances showing] that conditions exist which equity would see fit to intervene’ (Domestic Relations Law § 72 [1]), ‘an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,’ among other factors” (Matter of Lipton v Lipton, 98 AD3d 621, 621 [2012], quoting Matter of Emanuel S. v Joseph E., 78 NY2d 178, 182 [1991]). Additionally, the court must consider “ ‘the nature and basis of the parents’ objection to visitation’ ” (Matter of Bender v Cendali, 107 AD3d 981, 982 [2013], quoting Matter of Emanuel S. v Joseph E., 78 NY2d at 182). “A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers” (Matter of Roberts v Roberts, 81 AD3d 1117, 1118 [2011]).

Here, the Family Court properly denied the grandparents’ petition for visitation and dismissed the proceeding, without a hearing, based on their lack of standing. The Family Court, considering all of the relevant circumstances of this case, properly found that this is not a matter in which it would be equitable to confer standing upon the grandparents (see Domestic Relations Law § 72 [1]; Matter of Lipton v Lipton, 98 AD3d 621 [2012]; Matter of Marks v Cascio, 24 AD3d 556 [2005]).

The Family Court further concluded that, in any event, visitation would not be in the children’s best interests. The record also supports this finding (see Matter of Feldman v Torres, 117 AD3d 1048 [2014]; Matter of Tolbert v Scott, 42 AD3d 548 [2007]; Matter of DiBerardino v DiBerardino, 229 AD2d 539 [1996]; Matter of Coulter v Barber, 214 AD2d 195 [1995]). Skelos, J.P., Leventhal, Austin and Miller, JJ., concur.