As discussed in a prior entry, natural grandparents of a child are not entitled to automatic “standing” to commence a proceeding seeking a formal schedule of visitation. Instead, grandparents must demonstrate to the satisfaction of the Court that they have the right to pursue such a schedule of parenting time by alleging that either or both of the grandchild’s natural parents are deceased, or “where circumstances show that conditions exist which equity would see fit to intervene”. While the first basis is relatively straightforward, establishing that “conditions exist which equity would see fit to intervene” is ambiguous and largely subjective. As such prior matters in which Courts have found such circumstances to exist inform and guide the analysis on a case by case basis.
Initially, as the Second Department explained in the Matter of Lipton v. Lipton, “‘an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship’,” among other factors. 98 A.D.3d 621, 621 (2nd Dep’t. 2012) quoting, Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 182 (Ct. App. 1991). In Matter of Emanuel S. v. Joseph E., the Court of Appeals noted that “[i]f 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.’” 78 N.Y.2d 178, 182-83 (Ct. App. 1991).
Thus, when a grandparent commences a proceeding seeking visitation with a grandchild, the document filed to initiate the matter should set forth the grandparent’s relationship with the child in detail. Moreover, the grandparent should be prepared to present evidence and testimony to substantiate the relationship.
It may be the case that the grandparent claims that the natural parents have blocked the grandparent from communicating with the child or frustrated the development of a relationship with the child. Addressing such circumstances, the Lipton Court stated that in matters wherein it is alleged that a parent has frustrated the relationship between grandparent and grandchild, the petitioning grandparent must demonstrate ‘a sufficient effort to establish [a relationship with the child], so that the court perceives [the matter] as one deserving the court’s intervention’.” Id. at 621-622. Further, in “assessing the sufficiency of the grandparent’s efforts, ‘what is required of grandparents must always be measured against what they could reasonably have done under the circumstances’.” Lipton, supra, at 622.
After New York’s highest court, the Court of Appeals, issued the decision in Emanuel S., the Second Department discussed the sufficiency of efforts on the part of a grandparent to establish or maintain contact where it is alleged that efforts are being frustrated by a grandchild’s parent in the Matter of Augusta v. Carousso, 208 A.D.2d 620 (2nd Dep’t. 1994). In Augusta, the trial court determined that the petitioning grandfather failed to establish standing. 208 A.D.2d at 620. On review, the Second Department reversed the trial court, instead finding that the “from the time he learned of the birth of his grandchildren, the petitioner made a concerted effort to establish contact with them.” Id. at 620-21. Specifically, the Augusta Court recognized that “the petitioner unavailingly wrote letters, sent gifts, made telephone calls, visited the home of one daughter, and enlisted the assistance of third-party intermediaries.” Id. Ultimately, the Second Department determined that under the circumstances, the grandfather “did all he could reasonably have done in the face of adamant refusal to permit him to visit his grandchildren” and that it was clear that those efforts were not mere contrivance. Id. at 621.
For comparison, the Augusta Court cited the Matter of Seymour S. v. Glen S., wherein the Second Department reversed the Family Court’s order of visitation for a petitioning grandfather stating, “petitioner’s last contact with his granddaughter was when she was two weeks old, and there is no credible evidence that the petitioner made a reasonably sufficient effort to establish any contact with his granddaughter during the time from her birth in February 1984 to the filing of his petition in April 1989.” 189 A.D.2d 765, 765-66 (2nd Dep’t. 1993). In Seymour S. v. Glen S., the Court also noted that the petitioning grandfather had not had any contact with the respondent therein in approximately two (2) years. Id. at 766.
In the Matter of Fondanarosa v. Grimm, the Second Department again examined the issue of whether a petitioning grandparent has established sufficient efforts for the court to confer standing. 58 A.D.3d 840 (2nd Dep’t. 2009). In affirming the Family Court’s finding that the petitioning grandmother lacked standing stated, “the evidence established that the grandmother made only sporadic attempts to establish a relationship with the grandchildren and that the parents exercised their right and responsibility to set the parameters for any such relationship, which parameters were unacceptable to the grandmother.” Id. at 841; see also, Matter of Kalkstein v. Rist, 78 A.D.3d 947 (2nd Dep’t. 2010).
Further, in the Matter of Luma v. Kawalchuk, the Third Department addressed sufficiency of efforts finding that the “record shows that after their visitation rights were terminated, petitioners did not send any greeting cards to the children nor did they send them any presents.” 240 A.D.2d 896, 897 (3rd Dep’t. 1997). The Luma Court further found that “while petitioners were free to visit with the children at respondents’ home, they did not avail themselves of this opportunity nor is there any evidence that they attempted to call the children.” Id. In light of the foregoing, the Court concluded that the petitioning grandparents failed to” make a sufficient effort to maintain a relationship with their grandchildren.” Id.
Subsequently, in Matter of Bender v. Cendali, the Second Department affirmed the Family Court’s dismissal, without a hearing, of a petition seeking grandparent visitation where the Court found that the petitioners “failed to demonstrate that either or both parents, who divorced in 2011, terminated or frustrated their visitation with their grandson.” 107 A.D.3d 981, 982-83 (2nd Dep’t. 2013); see also, Matter of Troiano v. Marotta, 127 A.D.3d 877 (2nd Dep’t. 2015). In Bender, the Court noted that the petitioning grandparents had, in fact, had visitation less than a week before commencing the underlying proceeding and were merely upset with the duration of the visitation. 107 A.D.3d at 982.
In sum, the case law controlling “circumstances where equity would see fit to intervene” is instructive to any grandparent contemplating the pursuit of a formal schedule of parenting time. It is critical that the grandparent describe, in sufficient detail, the extent of the relationship with the grandchild, or the affirmative efforts by the parent to frustrate the development of such a relationship with the grandchild and the grandparent’s efforts to maintain, or establish a relationship with the child. Grandparents should note that sporadic or inconsistent efforts have been found insufficient.
The legal precedent discussed above can also guide parent’s responding a proceeding commenced by a grandparent. If the grandparent’s petition lacks detail relative to the nature and extent of the relationship with the child or insufficiently describes efforts to maintain the relationship, the responding parent should consider an application seeking to dismiss the grandparent’s petition at the very outset.
It must be understood by both grandparents and responding parents that establishing “standing” is merely the first inquiry in a grandparent visitation proceeding. Even if a grandparent is able to establish that they have standing, the Court will always be guided by the best interests of the children. Thus, even where the Court finds that the grandparent or grandparents are entitled to standing, the grandparents must allege and prove to the satisfaction of the Court that it is in the children’s best interest that a schedule of visitation be awarded. Conversely, the natural parents will be entitled to oppose a formal schedule of visitation and the case law discussed above reinforces that the Court is required to consider and may be persuaded by a natural parent’s reasons for limiting or denying a grandparent’s contact or relationship with a child.
If you are a grandparent considering an action seeking a formal schedule of visitation with a grandchild, or a parent faced with a petition seeking such visitation, it is important that you have the benefit of experienced legal representation. Our firm has handled both sides of this issue and if you would like an attorney experienced in litigating this issue, please contact our office for a consultation.