Simon Law Group: New York Focus – Paternal Grandmother Unable to Seek Visitation Due to Lack of Standing

In the Matter of MJM v. MM, an interesting new decision released earlier last week from the New York Supreme Court in Suffolk County, the trial judge held that a paternal grandmother petitioning for visitation with her grandchildren lacked standing to seek such relief. The situation involved severe allegations of violence by the children’s father against the mother, as well as grandma’s relationship with her son.

Grandma specifically alleged that such relief was appropriate because: (1) the children’s mother had refused to allow her to see the children for almost a year, (2) she always had a strong relationship with the children, (3) she previously had “liberal visitation” and was actively involved with them since birth, (5) the children’s father (petitioner’s son) had not seen the children for almost a year due to a no contact order of protection, and, (6) generally, such relief was in the children’s best interests.

Mom for the children opposed the petition, alleging: (1) she was stabbed four times by the children’s father in the presence of the children; (2) a no contact order of protection was issued almost a year earlier in the related child protective proceeding prohibiting dad from having any contact with the children; and (3) there were pending criminal, matrimonial and personal injury proceedings.

Mom also alleged that grandma had no current relationship with the children, “because the situation fail[ed] to rise to the level of circumstances in which equity would see fit to intervene,” and, generally, the visitation was not in the children’s best interests because: (1) grandma lived with the children’s father, (2) paid for dad’s counsel fees for his criminal, matrimonial, personal injury, and child welfare proceedings; (3) had joint financial accounts with dad; (4) vacationed with dad; (5) was a potential witness in three of his cases and a potential impleaded party in the personal injury case; and (6) had a “virtually symbiotic relationship” with dad who had “committed a horrific assault” on mom in the children’s presence.

Grandma responded that she would have tried to keep in contact with the children but for the order of protection, and provided additional details regarding her relationship with and connection to the children. She largely did not deny mom’s allegations about living with her son and paying for his counsel fees for several legal matters. Grandma also indicated that she was open to alternative forms of visitation outside of the home and would respect the order of protection. Further reply was filed by mom arguing against grandma’s petition, but not disputing grandma’s description of her relationship with the children prior to implementation of the no contact order.

As a threshold matter, the court held that it could not determine whether visitation with grandma was in the children’s best interests unless it first found that grandma had standing to bring her petition before the court. Ultimately, the court concluded that grandma lacked standing to bring her visitation petition because she failed to demonstrate that “circumstances show conditions in which equity would see fit to intervene”.

In so holding, the court quoted from Section 72 of the New York Domestic Relations Law, which provides grandparents with standing to file for visitation with grandchildren, “[w]here either or both of the parents of a minor child, residing within [the] state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene . . .”

Since both parents were alive in the subject case, the issue of standing rested on the existence “of conditions in which equity would see fit to intervene,” which is not automatic and is based on an examination of all relevant facts at issue. After reciting the above-referenced allegations, the court took note of the following in finding there did not exist standing for grandma to bring her petition:

grandma having waited 11 months to take any legal steps to see the children – especially since she is not referenced in the no contact order against dad. Her argument that she failed to take steps to see the children because of said order was, thus, discredited, and it was her failure to try to see the children why she had no current relationship with them when she filed her application. Quoting a previously decided matter, the court provided, “[if] the grandparents have done nothing to foster a relationship or demonstrate their attachment to the grandchild, despite opportunities to do so, then they will be unable to establish that conditions exist where “equity would see fit to intervene”.
grandma’s close relationship with her son

The specific facts of the case merited a dismissal of grandma’s application under DRL Sec. 72, but the result may have very well been different had she made sufficient and timely efforts to contact her children, and kept some degree of distance/independence from the children’s father in light of what he had done.

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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey. He can be reached at (973) 994-7526, or repstein@foxrothschild.com.