| Matter of Laudadio v Laudadio |
| 2013 NY Slip Op 02123 [104 AD3d 1091] |
| March 28, 2013 |
| Appellate Division, Third Department |
| In the Matter of Maryanne Marie Laudadio, Respondent, vRocco Laudadio et al., Appellants. |
—[*1] Ivy M. Schildkraut, Monticello, for Stephanie Montalvo, appellant. E. Danielle Jose-Decker, Monticello, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Sullivan County (McGuire,J.), entered January 20, 2012, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, for visitation with respondents' child.
Respondents, Rocco Laudadio (hereinafter the father) and Stephanie Montalvo(hereinafter the mother), are the unmarried parents of a child (born in 2011), andpetitioner is the child's paternal grandmother. Following an incident that occurred whenthe child was approximately two months old, during the course of which the mother'ssister struck petitioner, respondents cut off visitation between petitioner and the child.Petitioner thereafter commenced this proceeding seeking visitation with the child and,following a bifurcated hearing, Family Court granted petitioner's application andawarded petitioner visitation on the first Sunday of each month. Respondents nowseparately appeal.
We affirm. Where a grandparent seeks visitation and, as is the case here, both of thechild's parents are living, Family Court first must ascertain whether "conditions existwhich equity would see fit to intervene" (Domestic Relations Law § 72 [1]) inorder to confer standing (seeMatter of Van Nostrand v Van Nostrand, 85 AD3d 1352, 1352 [2011], lvdenied 17 NY3d 708 [2011]; Matter of Couse v Couse, 72 AD3d 1231, 1231-1232[2010]). "An essential part of [*2]the standing inquiry isthe nature and extent of the existing grandparent-grandchild relationship. . . [as well as] the basis for the parents' objection to visitation" (Matterof Kenyon v Kenyon, 251 AD2d 763, 763 [1998] [citations omitted]; see Matterof Van Nostrand v Van Nostrand, 85 AD3d at 1352-1353). Should Family Courtdetermine that the grandparent has standing to seek visitation, the question then becomeswhether such visitation is in the child's best interests (see Matter of Couse vCouse, 72 AD3d at 1232; Matter of Kenyon v Kenyon, 251 AD2d at 763; see also Matter of Quinn vHeffler, 102 AD3d 876, 876 [2013]). Inasmuch as Family Court had theadvantage of assessing the witnesses' testimony and demeanor firsthand, its credibilitydetermination "should not be set aside if it is supported by a sound and substantial basisin the record" (Matter of Quinn v Heffler, 102 AD3d at 876; see Matter ofThompson v Gibeault, 305 AD2d 873, 874 [2003]).
Here, petitioner testified that she purchased a crib and dresser for the child, waspresent for the child's birth, visited the child in the hospital, prepared dinner for thefamily when the child came home from the hospital and thereafter visited the child "atleast [10] times" during the first month of the child's life. According to petitioner, each ofthese visits would last "[a] few hours," during which time she would hold, feed andchange the child. Additionally, petitioner attended the child's first doctor's appointment,brought respondents and the child to a local shopping mall for the child's first photos andtransported the family to New York City to visit other relatives and retrieve gifts for thechild. Although the mother contended that petitioner lost interest in the child in late April2011, the mother also acknowledged that petitioner curtailed her visitations—atthe mother's request—in order to give the mother more time alone with the child.Finally, the father testified that after visitation between petitioner and the child was cutoff in May 2011, petitioner contacted him and asked to see the child on approximatelyfour occasions, which he would not permit. Such proof, in our view, demonstrates asufficient existing relationship between petitioner and the child to conferstanding—particularly given the age of the child and the brief interval of time thatelapsed between her birth and the interruption in visitation (see generally Matter of Lipton vLipton, 98 AD3d 621, 622 [2012] ["In assessing the sufficiency of thegrandparent's efforts, what is required of grandparents must always be measured againstwhat they could reasonably have done under the circumstances"] [internal quotationmarks and citations omitted]; Matter of Waverly v Gibson, 79 AD3d 897, 899 [2010][same]).
As to the second part of the test—whether visitation is in the child's bestinterests—we find that Family Court's decision to award visitation to petitioner hasa sound and substantial basis in the record. Although it is apparent from the record thatthe relationship between petitioner and respondents is strained, "an acrimoniousrelationship is generally not sufficient cause to deny visitation" (Matter of E.S. v P.D., 8 NY3d150, 157 [2007]; see Matterof Helen G. [James K.T.-Laverne W.], 96 AD3d 666, 666-667 [2012]). Themother's stated objections to the requested visitation were conclusory (see Matter of Stellone v Kelly,45 AD3d 1202, 1205 [2007]; compare Matter of Hilgenberg v Hertel, 100 AD3d 1432,1434 [2012] [evidence of serious wrongdoing by grandparent]; Matter of VanNostrand v Van Nostrand, 85 AD3d at 1353 [same][FN*]) and, although the father raisedlegitimate concerns in this regard, including the child's alleged exposure to secondhandsmoke at petitioner's home, we are satisfied that Family Court's [*3]order contains sufficient safeguards to address these issues.Accordingly, we discern no basis upon which to disturb Family Court's award ofvisitation.
Rose, J.P., Lahtinen and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The mother contendedthat the underlying relationship with petitioner was "always going to be hostile" andadmitted that she "[j]ust [did not] want [the child] around [petitioner]."