IN RE: Jacqueline BELL (2025)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the maternal grandmother appeals from an order of the Family Court, Richmond County (Peter F. DeLizzo, J.), dated September 17, 2024.  The order, after a hearing, denied the maternal grandmother's petitions pursuant to Domestic Relations Law § 72(1) for grandparent visitation with the subject children and dismissed the proceedings.

ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the petitions are reinstated, and the matter is remitted to the Family Court, Richmond County, for further proceedings in accordance herewith.

The petitioner (hereinafter the grandmother) is the maternal grandmother of the subject children.  The grandmother filed petitions pursuant to Domestic Relations Law § 72(1) for grandparent visitation with the children.  In an order dated September 17, 2024, the Family Court, after a hearing, denied the petitions and dismissed the proceedings for lack of standing.  The grandmother appeals.

Domestic Relations Law § 72 “does not create an absolute or automatic right of visitation.  Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild” (Matter of Marchant v. Marchant, 185 A.D.3d 1035, 1035–1036, 128 N.Y.S.3d 656 [internal quotation marks omitted];  see Matter of E.S. v. P.D., 8 N.Y.3d 150, 157, 831 N.Y.S.2d 96, 863 N.E.2d 100).  “[W]hen grandparents seek visitation under section 72(1), the court must undertake a two-part inquiry.  First, the court must find standing based on death or equitable circumstances;  and if the court concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild” (Matter of Marchant v. Marchant, 185 A.D.3d at 1036, 128 N.Y.S.3d 656 [alterations and internal quotation marks omitted];  see Matter of Poznik v. Salkin, 214 A.D.3d 663, 663–664, 182 N.Y.S.3d 923).

Here, to the extent that the Family Court applied an incorrect standard by determining that the grandmother failed to demonstrate “extraordinary circumstances” to warrant visitation, we may reach a determination upon our examination of the facts and application of the correct legal standard (see Matter of Kruglov v. Shatskaya, 218 A.D.3d 585, 193 N.Y.S.3d 163;  Matter of Broomfield v. Evans, 140 A.D.3d 748, 749, 30 N.Y.S.3d 915).

“Standing based on equitable circumstances should be conferred by the court, in its discretion, only after it has examined all the relevant facts” (Matter of Kushner v. Askinazi, 209 A.D.3d 735, 736–737, 175 N.Y.S.3d 567 [alteration and internal quotation marks omitted]).  An essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship (see Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 182, 573 N.Y.S.2d 36, 577 N.E.2d 27).  “ ‘In cases where the relationship between the grandparent and grandchild has been frustrated by a parent, the grandparent must show, inter alia, that he or she has made a sufficient effort to establish a relationship with the child, so that the court perceives the matter as one deserving the court's intervention’ ” (Matter of Kushner v. Askinazi, 209 A.D.3d at 737, 175 N.Y.S.3d 567 [alterations omitted], quoting Matter of Kelly v. Cairo, 198 A.D.3d 964, 965, 157 N.Y.S.3d 39).  The sufficiency of the grandparent's efforts is measured against what they could have reasonably done under the circumstances (see id.).  “Moreover, a court should consider ‘the nature and basis of the parents’ objection to visitation’ in deciding the standing question” (id., quoting Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182, 573 N.Y.S.2d 36, 577 N.E.2d 27).

Here, the Family Court's determination that the grandmother lacked standing to seek visitation was not supported by a sound and substantial basis in the record (see Matter of Noguera v. Busto, 189 A.D.3d 1050, 1051, 133 N.Y.S.3d 884).  The evidence demonstrated that the grandmother developed a relationship with the children early on in their lives and thereafter made repeated efforts to continue the relationship (see Matter of Weiss v. Weiss, 161 A.D.3d 992, 994, 76 N.Y.S.3d 212).

Accordingly, we remit the matter to the Family Court, Richmond County, for further proceedings on the grandmother's petitions, including a hearing to determine if visitation is in best interest of the children.

IANNACCI, J.P., CHRISTOPHER, VENTURA and HOM, JJ., concur.