IN RE: a Proceeding for under Article 6 of the Family Court Act (2022)

The above-captioned Article 6 grandparent visitation petition regarding Aiden E. (DOB:XX/XX/2015) and Liam E. (DOB: XX/XX/2012) was referred to Thomas W. Polito, Esq, Family Court Referee to hear and report. Referee Polito sent his Original Report to counsel on May 27, 2022 and sent an Additional Report (Inclusion of Transcript and Exhibits, and in Favor of Confirmation) to counsel on June 23, 2022. Referee Polito filed both reports with the Court on June 23, 2022. Respondent-Mother Wendy N. moved to reject the Referee's Report on June 9, 2022. No other motions were received. The Court scheduled Mother's motion on July 26, 2022.

The Court reviewed Maternal Grandmother Nancy N.’s petition for visitation filed September 9, 2021, her Amended Petition filed December 20, 2021 and her Second Amended Petition filed March 14, 2022 all pursuant to Domestic Relations Law § 72 with her grandsons, the transcripts of the fact-finding hearing on March 24, 2022 and April 28, 2022, all of the documents made a part of the record at the hearing and the Referee's Reports.

A statewide registry search has been completed for the parties and the children in these matters as required by New York State Family Court Act Section 651. The Court has considered these results in making this Decision and Order.

Although a court is entitled to reject the report of a referee and make new findings, “the report and recommendations of a referee should be confirmed if his or her findings are supported by the record” (Tihomirovs v Tihomirovs, 123 AD3d 808 [2d Dept 2014], lv denied 25 NY3d 903 [2015] see also Matter of McDuffie v Reddick, 154 AD3d 1308 [4th Dept 2017]). The referee made essential findings of fact, including credibility determinations, and reached conclusions of law. The Court agrees with the findings and conclusions of the Referee and hereby adopts them as the decision of this Court.

Now, therefore after this Court's careful review of the transcripts of the fact finding hearing before the Referee; it is hereby

ADJUDGED AND DECREED, that pursuant to Domestic Relations Law § 72 equity sees fit to intervene and regular frequent visitation with Maternal Grandmother is in the best interests of Aiden and Liam; and it is further

ADJUDGED AND DECREED, Maternal Grandmother has a substantial preexisting relationship with her grandsons and despite Mother's objection to visitation its in their best interests that Grandmother enjoys continued visits with the boys; and it is further

ADJUDGED AND DECREED, Respondent-Mother did not testify at the fact finding hearing before the Referee; and it is further

ADJUDGED AND DECREED, the Attorney for the Children strongly advocates in favor of Maternal Grandmother's continued visitations; and it is hereby

ORDERED, that the Mother shall provide Maternal Grandmother visitation for a period of 2 hours both on Christmas Day (12/25) from 5:00 - 7:00 p.m. and on Thanksgiving Day from 12:00 noon - 2:00 p.m.; and it is further

ORDERED, that Mother shall provide Maternal Grandmother monthly overnight visitation to coincide with one of the two weekends Mother has the children from Friday at 4:00 p.m. to Saturday at 6:00 p.m. Further the Court notes on at least one weekend each month Maternal Grandfather currently babysits for the children due to Mother's work schedule; and it is further

ORDERED, that Maternal Grandmother's one overnight per month shall not be exercised on the Father's weekends in accordance with the Judgment of Divorce incorporating but not merging the parties’ settlement agreement; and it is further

ORDERED, that Maternal Grandmother's weekday visitation shall be exercised during Mother's parenting time with the children, from after school until 7:00 p.m. on Fridays unless the parties’ otherwise mutually agree. The Court notes such regular weekly visitation schedule shall slightly impinge on Father's alternate weekend visitation on his weekends requiring a 7:00 p.m. Friday commencement; and it is further

ORDERED, that Maternal Grandmother shall not disparage either parent, Respondent-Mother Wendy N. and/or Respondent-Father Timothy E., in the presence of the children, nor allow third parties to do so; Maternal Grandmother shall follow any of the rules of Mother, dietary restrictions or otherwise, when the children are in her care at her house or during outings.

ORDERED, that the parties shall be entitled to return to Family Court for a further order resolving any custodial issues if there continue to be issues with Mother persisting in being uncooperative, including other remedies or if the terms outlined become untenable due to unforseen concerns not currently presented at this time, subject to any appropriate findings of awards for Attorneys Fees or Part 130 Sanctions against any of the parties, if warranted.

PURSUANT TO § 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY-FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Dandrea L. Ruhlmann, J.