| Matter of Varney v McKee |
| 2007 NY Slip Op 07951 [44 AD3d 1178] |
| October 25, 2007 |
| Appellate Division, Third Department |
| In the Matter of Darlene R. Varney, Appellant, v Christine M.McKee et al., Respondents. |
—[*1] Kara Dopman, Law Guardian, Glens Falls.
Peters, J. Appeal from an order of the Family Court of Warren County (Breen, J.), enteredSeptember 29, 2006, which partially granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6 and Domestic Relations Law § 72, for visitation with hergrandchild.
Respondents, who were never married, had one child together (born in 2003). Petitioner, thechild's paternal grandmother, was present at the child's birth, visited him every weekend andbabysat whenever asked. Within a month of respondents' separation in September 2004,petitioner became the child's primary caretaker and remained so until February 2006. In June2005, all parties consented to give her primary physical custody on a temporary basis, latermaking such order permanent in July 2005. At all times that petitioner had physical custody ofthe child, neither parent was living with the child. In February 2006, however, Family Courtissued another order of custody, on consent, granting respondents joint legal custody of the child,with primary physical custody to the mother. At that time, it was the understanding of the court,the Law Guardian and petitioner that petitioner would have visitation with the child.
When no such visitation was permitted for four months from that order, petitionercommenced this proceeding, pursuant to Domestic Relations Law § 72 and Family Ct Act§ 651 (b), for visitation with the child. Following a hearing, petitioner was granted threehours of visitation each month, as well as such additional visitation as the parties agreed. Thisappeal by petitioner followed.[*2]
The determination of grandparent visitation involves atwo-step inquiry (see Domestic Relations Law § 72; Matter of Emanuel S. vJoseph E., 78 NY2d 178, 181 [1991]). Once standing, predicated either upon death of aparent or "equitable circumstances which permit the court to entertain the petition" (Matter ofEmanuel S. v Joseph E., 78 NY2d at 181), is determined, the next inquiry is whethervisitation will be in the best interests of that child (see id.; see also Matter of E.S. v P.D., 8 NY3d150, 157 [2007]; Matter of Coulter v Barber, 214 AD2d 195, 196 [1995]).Recognizing that the issue of standing is not before us (see Matter of Wilson vMcGlinchey, 305 AD2d 879, 880-881 [2003], affd 2 NY3d 375 [2004]), we note thesufficiency of evidence evincing a relationship between petitioner and the child which was"deserving [of] the court's intervention" (Matter of Emanuel S. v Joseph E., 78 NY2d at182). With these equitable circumstances established, Family Court properly addressed whethervisitation would be in the child's best interests.
"Although there is no set formula in determining a child's best interest" (Matter of Ziarnov Ziarno, 285 AD2d 793, 794 [2001], lv denied 97 NY2d 605 [2001]; see Matterof Beers v Beers, 220 AD2d 839, 840 [1995]), factors will include " 'the nature and extent ofthe [existing] grandparent-grandchild relationship' " (Matter of Ziarno v Ziarno, 285AD2d at 794, quoting Matter of Emanuel S. v Joseph E., 78 NY2d at 182). As petitionerwas the child's primary caretaker for approximately 16 months during the early stages of thechild's life, and with it undisputed that the child formed a strong and loving bond with petitioner,Family Court properly determined that petitioner's visitation with the child was in the child's bestinterests (see Matter of Ziarno v Ziarno, 285 AD2d at 794). Considering the testimonyhighlighting some unstable elements in petitioner's home environment and the maxim that "thecourts should not lightly intrude on the family relationship" against the wishes of the parents(Matter of E.S. v P.D., 8 NY3d at 157; see Matter of Wilson v McGlinchey, 305AD2d at 882), we cannot conclude that Family Court abused its discretion in the amount ofvisitation awarded. In so finding, however, we note Family Court's strong advisory torespondents that they include petitioner in their family functions and consider expanding the timeavailable to petitioner when available. Upon that basis, we decline to modify the award at thisjuncture.
Mercure, J.P., Spain, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed,without costs.