| Matter of Hilgenberg v Hertel |
| 2012 NY Slip Op 07500 [100 AD3d 1432] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of William M. Hilgenberg, Respondent, v ChristopherA. Hertel, Respondent, and Heidi D. Hilgenberg, Appellant. |
—[*1] Karin H. Marris, Attorney for the Child, Syracuse, for Kameri M.H.
Appeal from an order of the Family Court, Onondaga County (Salvatore Pavone, R.), enteredOctober 25, 2011. The order, among other things, awarded petitioner visitation with the subjectchild.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the first and second ordering paragraphs and as modified the order is affirmed withoutcosts, and the matter is remitted to Family Court, Onondaga County, for further proceedings inaccordance with the following memorandum: Petitioner grandfather, the father of respondentmother, commenced this proceeding seeking visitation with his granddaughter (hereafter,grandchild). The mother appeals from an order that, inter alia, granted the petition and awardedthe grandfather one weekend per month of overnight visitation with the grandchild. Initially, wereject the mother's contention that the grandchild was deprived of effective assistance of counselin Family Court (see generally Matter ofFerguson v Skelly, 80 AD3d 903, 906 [2011], lv denied 16 NY3d 710 [2011];Matter of Sarah A., 60 AD3d1293, 1294-1295 [2009]; Matter ofWest v Turner, 38 AD3d 673, 674 [2007]). The record does not support the mother'sallegation that the Attorney for the Child failed to make a recommendation in accordance withthe grandchild's wishes, or the mother's implicit contention that the Attorney for the Child wasbiased against her (see generally Matter of Nicole VV., 296 AD2d 608, 614 [2002], lvdenied 98 NY2d 616 [2002]).
We reject the mother's conclusory assertion that Family Court erred in concluding that thegrandfather had standing to seek visitation. A grandparent has standing to seek visitation with hisor her grandchildren pursuant to Domestic Relations Law § 72 (1) where, inter alia,"circumstances show that conditions exist [in] which equity would see fit to intervene." Thefactors that a court must consider in determining whether the grandparent made such a showinginclude the "nature and basis of the parents' objection to visitation . . . [and] thenature and extent of the grandparent-grandchild relationship" (Matter of Emanuel S. v JosephE., 78 NY2d 178, 182 [1991]; see Matter of Morgan v Grzesik, 287 AD2d 150, 154[2001]). Here, the court properly concluded that the grandfather had demonstrated along-standing and loving relationship with the grandchild sufficient to seek visitation with her.[*2]
Upon demonstrating standing to seek visitation, however,a grandparent must then establish that visitation is in the best interests of the grandchild (seeEmanuel S., 78 NY2d at 181). Among the factors to be considered are whether thegrandparent and grandchild have a preexisting relationship, whether the grandparent supports orundermines the grandchild's relationship with his or her parents, and whether there is anyanimosity between the parents and the grandparent (see Matter of E.S. v P.D., 8 NY3d 150, 157-158 [2007]).Animosity alone is insufficient to deny visitation. " 'It is almost too obvious to state that, in caseswhere grandparents must use legal procedures to obtain visitation rights, some degree ofanimosity exists between them and the party having custody of the [grandchildren]. Were itotherwise, visitation could be achieved by agreement' " (id. at 157, quoting Lo Prestiv Lo Presti, 40 NY2d 522, 526 [1976]). Furthermore, "the decision whether . . .an intergenerational relationship would be beneficial in any specific case is for the parent tomake in the first instance. And, if a fit parent's decision . . . becomes subject tojudicial review, the court must accord at least some special weight to the parent's owndetermination" (Troxel v Granville, 530 US 57, 70 [2000]; see Morgan, 287AD2d at 151). Thus, "the courts should not lightly intrude on the family relationship against a fitparent's wishes. The presumption that a fit parent's decisions are in the [grand]child's bestinterests is a strong one" (E.S., 8 NY3d at 157).
Inasmuch as the court made no finding that the mother was not fit, and the grandfather didnot take a cross appeal from the order, we must therefore begin by according "some specialweight" to the mother's decision that the grandchild's best interests are not served by visitationwith the grandfather (Troxel, 530 US at 70). Furthermore, the court's determinationconcerning whether to award visitation " 'depends to a great extent upon its assessment of thecredibility of the witnesses and upon the assessments of the character, temperament, and sincerityof the parents' " and grandparents (Matter of Thomas v Thomas, 35 AD3d 868, 869 [2006]; see Matter of Steinhauser v Haas, 40AD3d 863, 864 [2007]). The court's determination concerning visitation will not bedisturbed unless it lacks a sound and substantial basis in the record (see Thomas, 35AD3d at 869; Matter of Keylikhes vKiejliches, 25 AD3d 801, 801 [2006], lv denied 7 NY3d 710 [2006]).
Here, we conclude that the court's determination lacks a sound and substantial basis in therecord insofar as it grants visitation to the grandfather. The mother and the grandmother testifiedto serious wrongdoing by the grandfather, including, inter alia, illegal drug use and sales, andvehicular assault upon the mother's boyfriend. The court failed to make any finding regarding thecredibility of those allegations, and thus we have no basis upon which to determine how thoseallegations, which include serious misconduct, would impact the determination whethervisitation with the grandfather is in the grandchild's best interests. Furthermore, there is noevidence in the record establishing that the grandfather previously has cared for the grandchildovernight, or for as extensive a time as the full weekend of visitation awarded by the court."Given the . . . deficiencies in the record . . . , this Court can neitherconclude that a sound and substantial basis exists for Family Court's award of [visitation] to the[grand]father . . . , nor can we accord appropriate weight to the [court's credibilitydeterminations] in conducting our own independent review" (Matter of Rivera v LaSalle, 84 AD3d 1436, 1440 [2011]). Wetherefore modify the order by vacating the first two ordering paragraphs, and we remit the matterto Family Court for further proceedings on the petition. Present—Scudder, P.J., Smith,Fahey, Carni and Valentino, JJ.