IN RE: Garth MARCHANT

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

IN RE: Garth MARCHANT, Appellant, v. Aziza MARCHANT, et al., Respondents.

2019-07135

Decided: July 29, 2020

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ. Steven P. Forbes, Jamaica, NY, for appellant. Lewis S. Calderon, Jamaica, NY, for respondent Aziza Marchant. Janet E. Sabel, New York, N.Y. (Dawne A. Mitchell and Claire V. Merkine of counsel), attorney for the children.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the maternal grandfather appeals from an order of the Family Court, Queens County (Carol A. Stokinger, J.), dated April 30, 2019. The order, after a fact-finding hearing, in effect, denied the maternal grandfather'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 affirmed, without costs or disbursements.

The petitioner (hereinafter the grandfather) sought visitation with his daughter's three children pursuant to Domestic Relations Law § 72(1). That provision “ ‘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 E.S. v. P.D., 8 N.Y.3d 150, 157, 831 N.Y.S.2d 96, 863 N.E.2d 100, quoting Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380, 779 N.Y.S.2d 159, 811 N.E.2d 526). Thus, “[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 ‘[i]f [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 E.S. v. P.D., 8 N.Y.3d at 157, 831 N.Y.S.2d 96, 863 N.E.2d 100, quoting Matter of Emmanuel S. v. Joseph E., 78 N.Y.2d 178, 181, 573 N.Y.S.2d 36, 577 N.E.2d 27).

Here, the grandfather had standing with respect to the oldest child, whose father was dead. With respect to the two younger children, the grandfather was required to establish circumstances in which equity would see fit to intervene to pursue visitation, as both parents of those children are still alive (see Domestic Relations Law § 72[1]). “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 Fitzpatrick v. Fitzpatrick, 137 A.D.3d 784, 784, 26 N.Y.S.3d 360 [internal quotation marks omitted] ).

We agree with the Family Court's determination that the grandfather did not demonstrate equitable circumstances sufficient to confer standing to seek visitation with the two younger children. The grandfather's testimony at the hearing demonstrated that he had almost no contact or communication with them for several years before the hearing (see Matter of Couse v. Couse, 72 A.D.3d 1231, 1232, 898 N.Y.S.2d 692), and he acknowledged that he no longer had a relationship with them.

Further, we agree with the Family Court's determination with respect to all three children that visitation would not be in their best interests (see Matter of Pinsky v. Botnick, 105 A.D.3d 852, 855, 962 N.Y.S.2d 668). “ ‘[T]he courts should not lightly intrude on the family relationship against a fit parent's wishes’ ” (Matter of Pinsky v. Botnick, 105 A.D.3d at 855, 962 N.Y.S.2d 668, quoting Matter of E.S. v. P.D., 8 N.Y.3d at 157, 831 N.Y.S.2d 96, 863 N.E.2d 100). “ ‘Indeed, it is strongly presumed that a fit parent's decisions are in the child's best interests’ ” (Matter of Pinsky v. Botnick, 105 A.D.3d at 855, 962 N.Y.S.2d 668, quoting Matter of Quinn v. Heffler, 102 A.D.3d 876, 876, 958 N.Y.S.2d 473). Here, the record established that the mother's objections to visitation were well founded (see Matter of Quinn v. Heffler, 102 A.D.3d at 876, 958 N.Y.S.2d 473).

Accordingly, we affirm the order, in effect, denying the petitions and dismissing the proceedings.

RIVERA, J.P., LEVENTHAL, HINDS–RADIX and CHRISTOPHER, JJ., concur.

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