| Matter of Johnson v Zides |
| 2008 NY Slip Op 10235 [57 AD3d 1318] |
| December 31, 2008 |
| Appellate Division, Third Department |
| In the Matter of Charles Johnson, Respondent, v Joyce Zides, Appellant,et al., Respondent. (And Another Related Proceeding.) |
—[*1] Ephie Trataros-Kehayias, Kingston, for Charles Johnson, respondent. Veronica M. Kosich, Law Guardian, Catskill.
Lahtinen, J. Appeal from an order of the Family Court of Ulster County (Mizel, J.), entered March14, 2007, which, among other things, granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Petitioner, the father of a child born in 1997, sought, among other things, to terminate or reducevisitation directed in an earlier order between the child and respondent Joyce Zides (hereinafter thematernal grandmother). During the first few years of his life, the child spent significant time in the care ofthe maternal grandmother. In July 2001, a stipulated Family Court order granted joint legal custody tothe father and the maternal grandmother, with physical custody to the father and liberal visitation for thematernal grandmother. Shortly thereafter, disputes between the father and the maternal grandmotherresulted in a series of petitions as well as subsequent unsubstantiated contentions by the maternalgrandmother that the father had abused the child. In July 2005, Family Court granted sole legal custodyto the father with a detailed visitation schedule for the maternal grandmother, including every otherweekend, every [*2]Wednesday evening, every other Thursdayevening and various other times.
The child, for much of his young life, has struggled with behavioral and mental health issues. He hadbeen hospitalized for these problems and his prescribed medications included an antipsychotic. Thefather commenced the current proceedings alleging, among other things, that the maternal grandmotherdeliberately did not administer the child's antipsychotic medication during visits resulting in significantadverse problems and that she also engaged in other conduct adverse to the father's relationship withhis son. Following a fact-finding hearing, Family Court rendered a lengthy decision directing, amongother things, that the maternal grandmother's visitation be reduced to one six-hour visit per month andthat she send a note home with the child after each visit outlining what had occurred in order toeliminate her past conduct of instructing the child to keep their activities secret. The maternalgrandmother appeals.
The maternal grandmother urges reversal because Family Court recited in its decision the standardfor a grandparent's initial visitation petition (see Matter of Emanuel S. v Joseph E., 78 NY2d178, 181 [1991]), rather than the standard for modifying visitation once it has been granted (seeMatter of Wilson v McGlinchey, 2 NY3d 375, 380-381 [2004]). Each standard involves atwo-prong analysis, with the second prong for both being the all-important consideration of the bestinterests of the child (see id. at 381; Matter of Emanuel S. v Joseph E., 78 NY2d at181). The standards differ in their first prong, with the initial application for grandparent visitationaddressing the grandparent's standing (see Matter of Emanuel S. v Joseph E., 78 NY2d at181) and a modification application looking first at whether there has been a change of circumstances(see Matter of Wilson v McGlinchey, 2 NY3d at 380-381).
Here, Family Court incorrectly applied the initial visitation standard, finding standing for thematernal grandmother and then determining that the best interests of the child required diminishedvisitation. Notwithstanding this error, Family Court's detailed discussion of the pertinent facts and itscredibility determinations—to which we accord deference (see Matter of Fortner vBenson, 306 AD2d 577, 578 [2003])—set forth an ample basis to consider the correct firstprong of the analysis involving a change in an existing order, i.e., change of circumstances. And, uponour review of the record (see Posporelis vPosporelis, 41 AD3d 986, 989 [2007]; cf. Young v Scully, 214 AD2d 905, 907[1995], lv dismissed 86 NY2d 883 [1995]), we find that such a change of circumstances wasshown. The record establishes that the maternal grandmother engaged in conduct tending to underminethe father's parental authority, and that the relationship between the maternal grandmother and the fathercontinued to deteriorate. Among other things, the maternal grandmother fostered an atmosphere ofencouraging the child to keep secrets from the father, she misrepresented her legal authority regardingthe child to a health care provider, she made baseless accusations against the father of child abuse andshe disregarded the medicine regimen established for the child by his treating physician.
The best interests of the child is the second part of the analysis. Family Court directly addressedthis issue at length and the record supports its conclusion that a significant reduction in the maternalgrandmother's visitation was in the child's best interests. The child's pediatric psychiatrist testifiedregarding the child's difficulties, the treatment he had received, and his current need for certainmedicines. Evidence at the hearing established that she did not administer medicine to the child when hewas staying with her. There was proof that, after extended stays with the maternal grandmother, thechild's behavior declined dramatically. When visitation with her was temporarily suspended, the childremained consistently calmer and happier. Family Court observed that the conflict between thehouseholds had a significant [*3]adverse impact on the child's mentalhealth to the point where he had become suicidal. The child's best interests are served by FamilyCourt's decision to reduce the amount of time and to place further restrictions upon the child's visitationwith the maternal grandmother.
Peters, J.P., Spain, Kane and Kavanagh, JJ., concur. Ordered that the order is affirmed, withoutcosts.