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OP read these current cases and use them:
In re Rubel, 2013-07772
Supreme Court of New York, Third Department
November 21, 2013
Hill v. Juhase, 105 A.D.3d 1278, 963 N.Y.S.2d 765
Supreme Court of New York, Third Department
April 25, 2013
105 A.D.3d 1278
963 N.Y.S.2d 765
This part:
And the holding:
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In re Rubel, 2013-07772
Supreme Court of New York, Third Department
November 21, 2013
Hill v. Juhase, 105 A.D.3d 1278, 963 N.Y.S.2d 765
Supreme Court of New York, Third Department
April 25, 2013
105 A.D.3d 1278
963 N.Y.S.2d 765
This part:
Also:The mother argues that Family Court erred in finding that petitioner had standing and awarding her visitation. We agree. Where, as here, the parents of children are alive, Domestic Relations Law § 72 gives grandparents the right to seek visitation with their grandchildren where, as a threshold matter, they can establish circumstances in which " equity would see fit to intervene," i.e., that equitable circumstances exist (Domestic Relations Law § 72[1]; see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181, 573 N.Y.S.2d 36, 577 N.E.2d 27 [1991]; Matter of Couse v. Couse, 72 A.D.3d 1231, 1232, 898 N.Y.S.2d 692 [2010] ). Grandparents " must establish a sufficient existing relationship with their grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court's intervention" ( Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27). Grandparents must allege and establish more than " love and affection" for their grandchildren ( id.; see Matter of Bassett v. McGraw, 55 A.D.3d 980, 981, 865 N.Y.S.2d 720 [2008] ). Only when a showing of equitable circumstances has been made will the court then determine whether visitation would be in the grandchildren's best interests ( see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 181, 573 N.Y.S.2d 36, 577 N.E.2d 27; Matter of Couse v. Couse, 72 A.D.3d at 1231, 898 N.Y.S.2d 692). While Family Court is accorded deference in determining the propriety of visitation, the court made no express credibility determinations here, and its determination must have a sound basis in the record ( see Matter of Opalka v. Skinner, 81 A.D.3d 1005, 1008, 916 N.Y.S.2d 271 [2011]; Matter of Baker v. Blanchard, 74 A.D.3d 1427, 1428, 903 N.Y.S.2d 200 [2010] ).
Notably, " essential" components of the standing inquiry are " the nature and extent of the grandparent-grandchild relationship" and " the nature and basis of the parent['s] objection to visitation" ( Matter of Emanuel S. v. Joseph E. 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27). Family Court made no such findings here, simply stating in its oral ruling that petitioner " does appear to have a relationship with the children," without describing its " nature" or " extent" ( id. ) and did not address the basis of the mother's objections. Upon our review of the testimony, we conclude that petitioner did not establish equitable circumstances that justify according her standing to force the mother to accept visitation outside parameters within which she is comfortable as a fit and responsible parent ( see Matter of Van Nostrand v. Van Nostrand, 85 A.D.3d 1352, 1353, 925 N.Y.S.2d 229 [2011], lv. denied 17 N.Y.3d 708, 2011 WL 4027479 [2011]; Matter of Fondanarosa v. Grimm, 58 A.D.3d 840, 841, 874 N.Y.S.2d 497 [2009] ). In so holding, we are reminded that " courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one" ( Matter of E.S. v. P.D., 8 N.Y.3d 150, 157, 831 N.Y.S.2d 96, 863 N.E.2d 100 [2007]; see Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 [2000] ).
The bolded refers to why she couldn't voluntarily seek to visit with her son. It doesn't mean that any court ordered time would have come from her son's time.Petitioner, a day-care provider, testified that she lives in Maryland, has relatives including a sister in Oneonta, and travels to New York approximately every other month. Although her testimony was vague, it appears that she sporadically saw the children, born in 2008 and 2006, a few times per year for short visits in 2009, 2010 and 2011 on trips to New York, and one or two times when the mother or father drove to Maryland with the children and stayed overnight at petitioner's house on their way to Virginia. She has never baby-sat for them or visited alone with them, but sends or brings cards and gifts. She claimed that on her New York trips, she often did not see them or saw them for only an hour or so because they usually already had other plans, which the mother [105 A.D.3d 1281] was unwilling or unable to alter at the last minute, or the mother picked them up after a short visit with petitioner and the father. Petitioner does not get along with or communicate with the mother, and the reasons for this were not clear. Although requested by the mother, it appears that petitioner often gave little notice of visits, a few days or hours, and the record suggests that petitioner's visits to New York were focused on visits to Oneonta and were not primarily to see the children, although she did request to see them when here. Her testimony did not clarify why she did not pursue visitation with the children at her son's residence or during his parenting time.
And the holding:
Thus, under these facts, notwithstanding her good intentions, petitioner did not meet her threshold burden of demonstrating standing, i.e., that equitable circumstances existed to warrant court intervention, and the petition should therefore be dismissed. Nonetheless, given the passage of considerable time in which some visitation has
reportedly been occurring, and during which petitioner may now have a more meaningful relationship with the children, the parties are encouraged to reach an agreement to continue that relationship and to agree upon ongoing visitation, provided the mother deems it beneficial to the children.
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