IN RE: COREY W. (Anonymous) (2023)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Kings County (Robert D. Mulroy, J.), dated January 11, 2021.  The order, insofar as appealed from, after a hearing, granted the maternal grandmother's petition for visitation with the subject child.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

Following the death of the subject child's mother, the child's maternal grandmother (hereinafter the grandmother) filed a petition seeking visitation with the child.  After a hearing, the Family Court granted the grandmother's petition and awarded her certain periods of visitation with the child.  The father appeals.

When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry (see Matter of Kushner v. Askinazi, 209 A.D.3d 735, 175 N.Y.S.3d 567;  Matter of Marchant v. Marchant, 185 A.D.3d 1035, 1036, 128 N.Y.S.3d 656).  First, it must determine whether the grandparent has standing, based either on the death of a parent or on equitable circumstances (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;  Matter of Pinsky v. Botnick, 105 A.D.3d 852, 854, 962 N.Y.S.2d 668;  Matter of Steinhauser v. Haas, 40 A.D.3d 863, 864, 837 N.Y.S.2d 660).  “Where either parent of the grandchild has died, the grandparents have an absolute right to standing” (Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181, 573 N.Y.S.2d 36, 577 N.E.2d 27).  Once the court concludes that the grandparent has established standing to petition for visitation, the court must then determine whether visitation is in the best interests of the child (see Matter of E.S. v. P.D., 8 N.Y.3d at 157, 831 N.Y.S.2d 96, 863 N.E.2d 100;  Matter of Fitzpatrick v. Fitzpatrick, 137 A.D.3d 784, 785, 26 N.Y.S.3d 360).  “[T]he court's determination concerning whether to award visitation depends to a great extent upon its assessment of the credibility of the witnesses and upon the assessments of the character, temperament, and sincerity of the parents and grandparents” (Matter of Hilgenberg v. Hertel, 100 A.D.3d 1432, 1434, 954 N.Y.S.2d 793 [internal quotation marks omitted];  see Matter of Steinhauser v. Haas, 40 A.D.3d at 864, 837 N.Y.S.2d 660;  Matter of Thomas v. Thomas, 35 A.D.3d 868, 869, 826 N.Y.S.2d 438).  This “determination concerning visitation will not be disturbed unless it lacks a sound and substantial basis in the record” (Matter of Hilgenberg v. Hertel, 100 A.D.3d at 1434, 954 N.Y.S.2d 793;  see Matter of Troiano v. Marotta, 127 A.D.3d 877, 879, 6 N.Y.S.3d 610;  Matter of Gonzalez v. Borbon, 121 A.D.3d 895, 896, 994 N.Y.S.2d 188).

Here, the death of the child's mother provided the grandmother with automatic standing to seek visitation (see Matter of E.S. v. P.D., 8 N.Y.3d at 157, 831 N.Y.S.2d 96, 863 N.E.2d 100;  Matter of B.S. v. B.T., 148 A.D.3d 1029, 1031, 49 N.Y.S.3d 732).  Turning to the second part of the inquiry, the Family Court properly determined that visitation between the grandmother and the child was in the child's best interests.  At the hearing, the grandmother established that she had helped the father take care of the child after the mother's death, and had been a part of the child's life to the present day (see Matter of E.S. v. P.D., 8 N.Y.3d at 157, 831 N.Y.S.2d 96, 863 N.E.2d 100).

Accordingly, the Family Court properly granted the grandmother's petition for visitation with the child.

CONNOLLY, J.P., WOOTEN, ZAYAS and WARHIT, JJ., concur.