In the Matter of Carol A. Wilson
et al.,
Respondents,
v.
Linda A. McGlinchey et al.,
Appellants.
(And Another Related Proceeding).
2004 NY Int. 73
In this petition to modify a Family Court third-party visitation order, the grandparents appeal from an Appellate Division order granting the parents' request to terminate visitation based on a change in circumstances since issuance of the initial order. Because we agree with the Appellate Division that terminating visitation is in the child's best interest, we affirm.
Petitioners Carol and Steven Wilson are the parents of two daughters. Respondents Linda and Brian McGlinchey ("grandparents") are Carol Wilson's parents and have been estranged from their daughter since 1997, prior to the daughter's marriage. In October 1999, the grandparents filed a petition pursuant to Domestic Relations Law § 72 seeking visitation with their four-month-old granddaughter. The Wilsons opposed the petition. Before a hearing was held, however, the parties reached an agreement and their written stipulation was incorporated into a Family Court order entered on June 22, 2000. Under the terms of the stipulation, the Wilsons agreed that the grandparents would have eight hours of visitation with the child every month, and the parties further consented to begin therapeutic family counseling by March 1, 2001. It is undisputed that this family counseling never occurred.
After several months of visitation, the Wilsons
commenced this proceeding in Family Court to terminate the
visitation between the grandparents and their daughter. The
petition alleged that a change in circumstances had occurred
since the entry of the Family Court order. Specifically, the
Wilsons claimed that the visits were an "unmitigated disaster,"
citing one incident where Carol Wilson summoned the police for
aid in removing the grandparents from her home at the end of a
visit with her daughter. In addition, the Wilsons asserted that
the situation had worsened over time and that the grandparents
The grandparents opposed the petition and cross- petitioned for their visitation sessions to include the Wilsons' younger daughter, born after the parties' stipulation. They countered that the Wilsons had impeded the agreement by restricting the days, times and locations of their visits and interrupting their interactions with their granddaughter during visits in the Wilsons' home. The grandparents also claimed that the Wilsons mischaracterized normal toddler behavior, such as crying, as evidence of the child's discomfort during visitation.
Family Court conducted a three-day hearing that
resulted in the dismissal of the Wilsons' petition and denial of
the grandparents' cross petition. After receiving testimony from
the parties and the therapists called by each side, as well as a
written report from the Law Guardian appointed to represent the
children, the court concluded that the Wilsons failed to
demonstrate a change in circumstances warranting termination of
visitation between the grandparents and the older child but found
that the younger child's best interest would not be served by
visitation with the grandparents. The court observed that "the
level of animosity between the parties, coupled with the obvious
The Appellate Division modified, on the law and the
facts, by granting the Wilsons' petition, and vacated the Family
Court visitation order. Relying on testimonial and other
evidence from the hearing, the court found that the child and her
mother and grandmother all suffered from emotional distress as a
consequence of the increasing tension and hostility between the
parties surrounding the visits. Moreover, the court viewed the
parties as "incapable of preventing their feelings toward one
another from infecting any visitation" and reasoned that, in
light of the parents' and grandparents' use of the child as a
"pawn" in their battle, the child would likely be harmed by
continuing "to force visitation with [the grandparents] against
her parents' wishes" (305 2 879, 881 [3d Dept 2003]). The
On appeal to this Court, the grandparents dispute the factual findings and legal analysis of the Appellate Division and contend that the parents failed to meet their burden of proof establishing a change in circumstances that warranted modification of the existing visitation order. Thus, they urge that consideration of the older child's best interest was inappropriate in this situation and that visitation should be maintained. We disagree.
In its decision in Troxel v Granville (530 US 57 [2000]), a plurality of the United States Supreme Court recognized "that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children" ( id. at 66; see Matter of Ronald FF. v Cindy GG., , 70 NY2d 141 [1987]). Troxel involved an as-applied constitutional challenge to Washington State's third-party visitation statute. The plurality stressed the deference that a state must give to the child-rearing decisions of fit parents:
>(530 US at 70)."[i]n an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision [restricting visitation] * * * becomes subject to
judicial review, the court must accord at least some special weight to the parent's own determination"
In New York, Domestic Relations Law § 72 acknowledges the value to children of grandparent relationships but does not create "an absolute or automatic right of visitation" ( Lo Presti v Lo Presti, , 40 NY2d 522, 526 [1976]). Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild in two specific instances -- where one or both parents of the child have died or "where circumstances show that conditions exist which equity would see fit to intervene" (Domestic Relations Law § 72; see Lo Presti, 40 NY2d at 526). When grandparents petition for visitation under section 72, the court undertakes a two-part inquiry: "[f]irst, it must find standing based on death or equitable circumstances which permit the court to entertain the petition. If it 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 Emanuel S. v Joseph E., , 78 NY2d 178, 181 [1991]). Standing, therefore, does not ensure that visitation will be granted -- the court also has to find that such visitation is in the best interest of the child.
Once a visitation order is entered, it may be modified
only "upon a showing that there has been a subsequent change of
circumstances and modification is required" (Family Court Act
On the critical factual dispute in the case -- whether
a change in circumstances warranting modification occurred --
Family Court relied heavily on the pre-existing estrangement and
stipulated order to find no such change. In contrast, the
Appellate Division found that the exacerbated levels of animosity
and stress and the associated negative impact on the child and
her mother represented a change necessitating termination of
visitation. Where courts below reach different factual
Considering all of the pertinent factors and after
review of the entire record, we conclude that the Appellate
Division properly terminated visitation between the grandparents
and the older child. In this case, the initial visitation order
resulted from the Wilsons' assent to the grandparents' demand and
not from a full hearing assessing either the standing issue or
the best interest of the child under the circumstances ( see
Matter of Emanuel S., 78 NY2d at 181). The evidence reveals
that, after the commencement of visitation, the already-strained
relationship between the parents and grandparents further
deteriorated. The hostility intensified between the two camps
and culminated in the March 2001 episode -- the impetus for this
modification petition -- when Carol Wilson called the police in
order to get her parents to leave the house after a visitation.
Of course, animus between litigants is not uncommon, particularly
in emotionally-charged family matters ( see Lo Presti, 40 NY2d at
526). Although enmity between parents of a child may not affect
a parent's visitation rights ( see Domestic Relations Law § 240;
Family Court Act § 651), grandparent visitation under Domestic Relations Law § 72 implicates different equitable concerns ( see
Matter of Emanuel S., 78 NY2d at 181-182). Here, Carol Wilson's
We have recognized that "visits with a grandparent are often a precious part of a child's experience and there are benefits which devolve upon the grandchild which he cannot derive from any other relationship" ( id. at 181 [internal citations omitted]). This interest must yield, however, where the circumstances of the child's family -- including the worsening relations between the litigants and the strenuous objection to grandparent visitation by both parents -- render the continuation of visitation with the grandparents not in the child's best interest ( see Friederwitzer, 55 NY2d at 95). We therefore determine that the child's best interest is advanced by shielding her from the animosity and dysfunction between the parents and grandparents and by reducing, in the words of Carol Wilson's therapist, the "paralyzing" stress experienced by the child's mother attendant to the visitation. In light of this ruling, we need not address the Wilsons' alternative argument challenging the constitutionality of Domestic Relations Law § 72.
Accordingly, the order of the Appellate Division should
Footnotes
1 Despite concluding that no change in circumstances had occurred since the initial order, the Law Guardian also acknowledged the existence of a "great deal of animosity" between the parties. Accordingly, he recommended that visitation with the younger child only be granted if the prior order pertaining to the older child remained in effect.
2 The grandparents did not appeal the denial of their petition for visitation with the younger child.
3 The parties and the courts below proceeded under the assumption that the "change in circumstances" standard is applicable to modifications of grandparent visitation orders. Given this posture, we have no occasion to consider the propriety of this assumption.