| Matter of Van Nostrand v Van Nostrand |
| 2011 NY Slip Op 04791 [85 AD3d 1352] |
| June 9, 2011 |
| Appellate Division, Third Department |
| In the Matter of Lori S. Van Nostrand, Appellant, v Kaylee VanNostrand, Respondent, and David Roy Condon, Respondent. |
—[*1] Mitch Kessler, Cohoes, for David Roy Condon, respondent. Sven R. Paul, Schenectady, attorney for the children.
Rose, J. Appeal from an order of the Family Court of Schenectady County (James, J.H.O.),entered July 2, 2010, which dismissed petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, for visitation with respondents' child.
Respondents are the unmarried parents of a son (born in 2006). Although they do not livetogether, they share custodial responsibilities for the child. Petitioner, the maternal grandmother,commenced this proceeding seeking visitation after respondent Kaylee Van Nostrand (hereinafterthe mother), upon learning of petitioner's most recent use of illegal drugs, refused to allow her tohave any contact with the child. Respondents opposed the petition and, after a hearing on theissue of standing, Family Court dismissed it, finding that, while there had been some contactbetween petitioner and the child in the past, the frequency could not be reliably determined andrespondents' opposition to visitation was justified. On appeal, petitioner contends that FamilyCourt determined standing under an incorrect "extraordinary [*2]circumstances" standard and, although the court found that thecredibility of all witnesses was suspect on the issue of the frequency of petitioner's contact withthe child, the mother's concessions regarding those contacts provided credible evidence of asufficient relationship to allow standing.
Petitioner has standing to seek visitation here if she establishes that "conditions exist whichequity would see fit to intervene" (Domestic Relations Law § 72 [1]; see Matter of Roberts v Roberts, 81AD3d 1117, 1118 [2011]). Relevant considerations in making a standing determinationinclude the nature and extent of the grandparent-grandchild relationship, as well as the nature andbasis of the parents' objection to visitation (see Matter of Emanuel S. v Joseph E., 78NY2d 178, 182 [1991]; Matter of Kenyon v Kenyon, 251 AD2d 763, 763 [1998]). Whilewe agree that Family Court applied an incorrect standard, it considered the relevant factors and,as our authority is as broad as Family Court's, we may reach a determination upon ourexamination of the facts and application of the correct legal standard (see Matter of Luma vKawalchuk, 240 AD2d 896, 897 [1997]; Matter of Satori R., 202 AD2d 432, 433[1994]).
Our review of the mother's concessions reveals that petitioner had some contact with thechild, but it was not regular or consistent. As for the nature and basis of respondents' objections,the mother's testimony is unrefuted that petitioner engaged in threatening and violent behaviortoward her and her brother, and long-term drug abuse. Further, Family Court credited themother's testimony that she had recently discovered petitioner again using crack cocaine, and weagree with the court's finding that the mother's decision to withhold contact with the child wasjustified. In light of the periodic nature of the contact and the unrefuted basis for respondents'justified opposition to visitation, we conclude that petitioner failed to establish the existence ofequitable circumstances permitting the court to entertain her petition and, thus, she has nostanding (see Matter of Couse vCouse, 72 AD3d 1231, 1232 [2010]; Matter of Luma v Kawalchuk, 240 AD2dat 897; Matter of Coulter v Barber, 214 AD2d 195, 197 [1995]).
Peters, J.P., Spain, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.