| Matter of Couse v Couse |
| 2010 NY Slip Op 02888 [72 AD3d 1231] |
| April 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Floyd L. Couse, Jr., et al., Appellants, v Peggy S.Couse, Respondent, et al., Respondent. |
—[*1] Clifton M. Tamsett Jr., Norwich, for Peggy S. Couse, respondent. Norbert A. Higgins, Law Guardian, Binghamton.
Stein, J. Appeal from an order of the Family Court of Chenango County (Sherman, J.),entered February 2, 2009, which, among other things, dismissed petitioners' application, in aproceeding pursuant to Family Ct Act article 6, for visitation with two of their grandchildren.
Petitioners are the biological parents of respondent Peggy S. Couse (hereinafter the mother)and the grandparents of her three children (born 1995, 2000 and 2001). In March 2007,petitioners filed two petitions, seeking visitation with their three grandchildren.[FN1]Family Court [*2]dismissed the petitions for lack of standing dueto the fact that the mother was still alive (see Domestic Relations Law § 72). Onappeal, we reversed and remitted the proceedings based upon Family Court's failure to determinewhether petitioners could establish standing by demonstrating "equitable circumstances whichwould permit the court to entertain their petitions" (Matter of Couse v Couse, 50 AD3d 1211, 1211-1212 [2008]).After conducting hearings in November and December 2008, including Lincolnhearings, Family Court dismissed the petitions.[FN2]Petitioners now appeal[FN3]and we affirm.
Where, as here, both parents are still alive, Domestic Relations Law § 72 allowsgrandparents to seek visitation with their grandchildren when they establish circumstances inwhich equity would see fit to intervene (see Matter of Emanuel S. v Joseph E., 78 NY2d178, 181-182 [1991]; Matter of Varneyv McKee, 44 AD3d 1178, 1179 [2007]). Such circumstances must include a sufficientexisting relationship with the grandchildren or, where it is alleged that the parents interfere orfrustrate the establishment of such relationships, a sufficient effort by the grandparents toestablish such a relationship (see Matter of Emanuel S. v Joseph E., 78 NY2d at 182). Inthe latter situation, the grandparents must demonstrate that they did everything possible underthe circumstances to establish a relationship with their grandchildren (see Matter of Luma vKawalchuk, 240 AD2d 896, 896 [1997]). Only if the grandparents establish equitablecircumstances permitting the court to entertain their petitions will the court then proceed todetermine whether visitation would be in the children's best interests (see DomesticRelations Law § 72; Family Ct Act § 651 [b]; Matter of Emanuel S. v JosephE., 78 NY2d at 181; Matter of Varney v McKee, 44 AD3d at 1179).
Here, we conclude that Family Court was well within its discretion in finding that petitionersdid not demonstrate equitable circumstances sufficient to confer standing to seek visitation withtheir grandchildren (see Matter of Emanuel S. v Joseph E., 78 NY2d at 181; Karr v Black, 55 AD3d 82, 85[2008], lv denied 11 NY3d 712 [2008]; Matter of Bassett v McGraw, 55 AD3d 980, 981 [2008]; Matterof Wenskoski v Wenskoski, 266 AD2d 762, 763 [1999]). Petitioners testified that, whilethey had frequent and substantial contact with the children for several years prior to thecommencement of this proceeding, they had seen the younger two children only twice in the"last several" months preceding the hearings. Such visits occurred when the children were intheir father's care. In addition, petitioners conceded that their [*3]relationship with the mother had deteriorated and that they had nointention of communicating with the mother, even "for the sake of the children." They alsoexpressed an unwillingness to assume responsibility for transporting the children to and from themother's home to facilitate visitation. Nor did they demonstrate that they had taken reasonablesteps to repair their relationship with the mother or that they had done everything possible toincrease their contact with the children while in the father's care.
However, even if petitioners had established standing, we would not disturb Family Court'sdetermination that visitation would not be in the best interests of the children (see Matter of E.S. v P.D., 8 NY3d150, 157 [2007]; Matter of Bassett v McGraw, 55 AD3d at 981). Here, ampleevidence was presented of petitioners' use of foul language and disparagement of the mother inthe presence of the children and of the grandfather's volatile personality. In addition, despite thestrained relationship between the mother and petitioners, the mother indicated that she was notcompletely opposed to petitioners spending time with the children, but desired that such contactoccur in a public place or at the residence of the children's father. Giving due deference toFamily Court's factual determinations and in light of the Law Guardian's support of FamilyCourt's decision, we perceive no abuse of discretion (see Matter of Siler v Wright, 64 AD3d 926, 928 [2009]).
Spain, J.P., Rose, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Two separate petitions werefiled inasmuch as the father of the oldest child is different from the father of the two youngerchildren. At the time that petitioners' petitions were filed, the two older children resided with themother and the youngest child resided with his father. With respect to the younger two children,their father and the mother each had scheduled visitation with the child residing with the otherparent.
Footnote 2: Family Court also awarded themother sole custody of the two younger children and granted alternate weekend visitation to theirfather. The self-represented father has not appealed therefrom nor has he filed a brief orotherwise advised us of his position with respect to this appeal.
Footnote 3: We note that petitioners' noticeof appeal is limited to the order relating to the two younger children, and the record before uscontains neither an order nor a notice of appeal pertaining to the oldest child. To the extent thatthe notice of appeal in the record references Family Court's decision—which does mentionall three children—no appeal lies from a decision of the Family Court (see FamilyCt Act § 1112). Thus, we address herein only the issues pertaining to the two youngerchildren.