| Matter of Bassett v McGraw |
| 2008 NY Slip Op 07817 [55 AD3d 980] |
| October 16, 2008 |
| Appellate Division, Third Department |
| In the Matter of Dolores A. Bassett, Appellant, v Allison McGraw,Respondent, et al., Respondent. |
—[*1] Andrew M. Dunn, Oneida, for respondent. Joseph Nalli, Law Guardian, Fort Plain.
Malone Jr., J. Appeal from an order of the Family Court of Otsego County (Coccoma, J.), enteredMay 24, 2007, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Actarticle 6, for visitation with the subject child.
Petitioner, the paternal grandmother of the subject child (born in 2002), commenced thisproceeding seeking unsupervised visitation with him. At the time, respondent Allison McGraw(hereinafter respondent), the child's mother, had custody of the child and respondent Joseph Bassett,the child's father, had supervised visitation. Respondent opposed petitioner's application and, after ahearing, Family Court dismissed the petition. Petitioner now appeals.
"When grandparents seek visitation under [Domestic Relations Law §] 72 (1), the courtmust undertake a two-part inquiry. 'First, [the court] must find standing based on death or equitablecircumstances'; and '[i]f [the court] concludes that the grandparents have established the right to beheard, then it must determine if visitation is in the best interest of the grandchild' " (Matter of E.S. v P.D., 8 NY3d 150,157 [2007], quoting Matter of Emanuel S. v Joseph E., 78 NY2d 178, 181 [1991]). Standingis conferred by the court in its discretion after consideration of all the relevant facts, including the natureand basis for a parent's objection to the petition (see [*2]Matter ofEmanuel S. v Joseph E., 78 NY2d at 182; Karr v Black, 55 AD3d 82, 84-85 [2008]).
In the instant case, both parents are alive and, thus, petitioner was required to establish standingunder the equitable circumstances provision of the statute, which requires more than an allegation oflove and affection for the child and an expressed desire for visitation. Rather, the grandparent mustdemonstrate "a sufficient existing relationship with [the] grandchild, or in cases where that has beenfrustrated by the parents, a sufficient effort to establish one, so that the court perceives it as onedeserving the court's intervention" (Matter of Emanuel S. v Joseph E., 78 NY2d at 182;Matter of Wenskoski v Wenskoski, 266 AD2d 762, 763 [1999]). In this regard, petitioneradmitted at the hearing that, with respondent's cooperation, she already enjoyed periodic visitation withthe child and her main complaint was that respondent insisted on supervised visitation. Respondentacknowledged her insistence on supervised visitation and explained her reasons therefor; namely, thatpetitioner has previously allowed unsupervised contact between her other grandchildren and theirfather, in violation of a court order, and has made inappropriate comments to those children about theirmother. Nevertheless, respondent testified that she is willing to continue to accommodate petitioner'sreasonable requests to see the child as often as possible, so long as the visits were supervised by eitherher or her mother. Under the facts presented here, petitioner did not meet her burden of demonstratingthat equitable circumstances existed that warranted court intervention (see Karr v Black, 55AD3d at 86). As petitioner failed to establish the requisite standing to maintain the proceeding, FamilyCourt did not abuse its discretion in dismissing the petition.
Mercure, J.P., Peters, Spain and Stein, JJ., concur. Ordered that the order is affirmed, withoutcosts.