| Matter of Couse v Couse |
| 2008 NY Slip Op 02928 [50 AD3d 1211] |
| April 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Floyd L. Couse Jr. et al., Appellants, v Peggy S.Couse et al., Respondents. (And Another Related Proceeding.) |
—[*1] Norbert Higgins, Law Guardian, Binghamton.
Stein, J. Appeals from two orders of the Family Court of Chenango County (Sullivan, J.),entered June 1, 2007, which dismissed petitioners' applications, in two proceedings pursuant toFamily Ct Act article 6, for visitation with their grandchildren.
Petitioners are the biological parents of respondent Peggy S. Couse and the grandparents ofher three children. Petitioners filed two petitions seeking visitation with their grandchildren.Family Court dismissed the petitions, sua sponte, on the basis that petitioners were not entitled tovisitation, as a matter of law, unless their daughter was no longer alive. Although Family Courtdid not specifically denominate the issue as such, it essentially found that petitioners lackedstanding.
Family Court erred in dismissing the petitions. While it is true that grandparents have anabsolute right to petition for visitation with their grandchildren where either or both of thechildren's parents has died (see Domestic Relations Law § 72; Family Ct Act§ 651 [b]; Matter of Emanuel S. v Joseph E., 78 NY2d 178 [1991]), that right alsoexists when the grandparents establish circumstances in "which equity would see fit to intervene"(Domestic Relations Law § 72 [1]; see Matter of Emanuel S. v Joseph E., 78 NY2dat 181; Matter of Varney v McKee, 44 [*2]AD3d 1178[2007]). Here, Family Court failed to examine whether petitioners had established equitablecircumstances which would permit the court to entertain their petitions and, if so, whethervisitation would be in the children's best interests (see Domestic Relations Law §72 [1]; Family Ct Act § 651 [b]; Matter of Emanuel S. v Joseph E., supra;Matter of Varney v McKee, supra). Accordingly, the matters must be remitted to FamilyCourt.
Peters, J.P., Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the orders arereversed, on the law, without costs, and matters remitted to the Family Court of ChenangoCounty for further proceedings not inconsistent with this Court's decision.