IN RE: Anthony Brancato

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Anthony Brancato, et al., appellants, v. Theresa Federico, et al., respondents.

2013–01642 2013–01644 (Docket Nos. V–10140–12, V–10141–12)

Decided: June 25, 2014

PETER B. SKELOS, J.P. MARK C. DILLON THOMAS A. DICKERSON LEONARD B. AUSTIN, JJ. John N. Fath, P.C., Patchogue, N.Y. (David M. Johnson of counsel), for appellants. Thomas K. Campagna, P.C., Hauppauge, N.Y., for respondents.

Argued—December 4, 2013

DECISION & ORDER

Regina M. Stanton, Port Jefferson, N.Y, attorney for the children.

In related proceedings pursuant to Family Court Act article 6 for grandparent visitation, the maternal grandparents appeal from (1) a decision of the Family Court, Suffolk County (Fondulis, J.), dated January 7, 2013, and (2) an order of the same court, also dated January 7, 2013, which, upon the decision, granted the parents' motion to dismiss the petition for lack of standing and dismissed the proceeding.

ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr.   Corp., 100 A.D.2d 509);  and it is further,

ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Suffolk County, for a hearing on the issue of the maternal grandparents' standing to seek grandparent visitation and for a new determination thereafter of the parents' motion to dismiss the petition for lack of standing.

“When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry” (Matter of Gray v. Varone, 101 AD3d 1122, 1123).  “First, it must find that the grandparent has standing, based on, inter alia, equitable considerations” (id. at 1123;  see Matter of E.S. v. P.D., 8 NY3d 150, 157;  Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181;  Matter of Ann M.C. v Orange County Dept. of Social Servs., 250 A.D.2d 190, 194).  “If it concludes that the grandparent has established standing to petition for visitation, then the court must determine if visitation is in the best interests of the child” (Matter of Gray v. Varone, 101 AD3d at 1123;  see Matter of E.S. v. P.D., 8 NY3d at 157;  Matter of Wilson v. McGlinchey, 2 NY3d 375, 380;  Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 181;  Matter of Gort v. Kull, 96 AD3d 842, 843).

“In considering whether a grandparent has standing to petition for visitation based upon ‘circumstances show[ing] that conditions exist which equity would see fit to intervene’ (Domestic Relations Law § 72[1] ), ‘an essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship,’ among other factors” (Matter of Lipton v. Lipton, 98 AD3d 621, 621, quoting Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182;  see Matter of Agusta v. Carousso, 208 A.D.2d 620).   Additionally, the court must consider “ ‘the nature and basis of the parents' objection to visitation’ ” (Matter of Bender v. Cendali, 107 AD3d 981, 982, quoting Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182;  see Matter of Lipton v. Lipton, 98 AD3d at 622).  “In cases where such a [grandparent-grandchild] relationship 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’ ” (see Matter of Lipton v. Lipton, 98 AD3d at 621–622, quoting Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 182;  see Matter of Agusta v. Carousso, 208 A.D.2d at 620).  “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' ” (Matter of Lipton v. Lipton, 98 AD3d at 622, quoting Matter of Emanuel S. v. Joseph E., 78 N.Y.2d at 183;  see Matter of Agusta v. Carousso, 208 A.D.2d at 620).

Contrary to the Family Court's determination, the allegations in the petition, the evidence submitted by the parents in support of their motion to dismiss the petition on the ground of lack of standing, and the evidence submitted by the maternal grandparents in opposition to the parents' motion gave rise to factual issues which must be resolved at a hearing, including, inter alia, the nature and extent of the grandparent-grandchildren relationship, the maternal grandparents' efforts to establish and maintain a relationship with the grandchildren, and the parents' alleged attempts to frustrate the grandparent-grandchildren relationship.   Accordingly, the Family Court improperly granted the parents' motion to dismiss the petition for lack of standing without first conducting a hearing.

The maternal grandparents' remaining contentions either are not properly before this Court or need not be reached in light of our determination.

SKELOS, J.P., DILLON, DICKERSON and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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