DECISION AND ORDER AFTER TRIAL Petitioner (the “Maternal Grandmother”), filed a Petition for Visitation on July 27, 2016, pursuant to DRL §72 (1), seeking visitation with her four grandchildren, to wit: C.V., born April 3, 2005; D.V., born March 25, 2006; E.V., born July 29, 2007; and F.V., born July 7, 2009 (hereinafter collectively referred to as the “Subject Children”). The Subject Children’s biological mother is deceased, and the Respondent (the “Father”) was married to the Mother at the time of conception of each of the Subject Children, and paternity is not disputed. Father refuses to consent to any contact or visitation between the Maternal Grandmother and the Subject Children.PROCEDURAL BACKGROUNDOn October 7, 2016, the Court ordered that Child Protective Services conduct an investigation in reference to the issues presented in this matter (Muraca, A.J.S.C.), which resulted in a report dated November 17, 2016. The report indicated that the case would be unfounded against both parties.On October 7, 2016, each party was assigned counsel, and an attorney was assigned to represent the Subject Children (the “Attorney for the Children”).By Order dated March 27, 2017 (Muraca, A.J.S.C.), the Court appointed Dr. Benzaquen (the “Forensic”) to conduct a forensic evaluation in these proceedings and to examine the parties, and the Subject Children, as well as any extended family members or persons affiliated with either party’s household, if deemed relevant. The Court further directed that Dr. Benzaquen submit a report addressing the issue of the grandparent visitation, and to appear and testify if so directed by the Court. Dr. Benzaquen was directed to make a recommendation as to specific issues. A Corrected Forensic Order was issued on August 7, 2017, which corrected the allocation of the payment of the cost of the forensic evaluation (Muraca, A.J.S.C.). Upon the conclusion of his evaluation, Dr. Benzaquen produced a final written report to the Court dated July 12, 2017 (the “Report”).“For good cause shown,” Judge Muraca, by Order dated March 27, 2017, issued a Temporary Order of Custody and Parenting Time, pursuant to which the Father was granted legal and residential custody of the Subject Children, and the Maternal Grandmother was permitted to have telephone contact with the Subject Children, and to send them cards and letters after they were reviewed by all counsel. Thereafter, Judge Muraca issued a Temporary Order of Therapeutic Visitation dated September 21, 2017, and a First Modified Temporary Order of Custody & Visitation dated November 13, 2017, which was on consent and pursuant to which the Maternal Grandmother was to have supervised visitation with the Subject Children two times per month for a duration of two hours for each visit.A trial in this matter was commenced on February 26, 2018, and continued on March 12, 2018, March 13, 2018, March 15, 2018, and concluded on March 28, 2018. Maternal Grandmother testified and called Dr. Benzaquen and the Maternal Grandfather as her only two witnesses. Respondent testified and called no further witnesses. The Court interviewed each of the Subject Children individually in camera on April 10, 2018 in the presence of the Attorney for the Children.FINDINGS OF FACTPETITIONER, MATERNAL GRANDMOTHER:The Maternal Grandmother testified that she and the Maternal Grandfather had two children, a son and daughter. She testified that her daughter was the mother of the Subject Children, and that her daughter was diagnosed with cervical cancer and ultimately died on December 4, 2014, at the age of 33.Maternal Grandmother testified that she had a good relationship with the Subject Children prior to the passing of her daughter, however, her testimony was inconsistent with regard to the nature and depth of said relationship. It was her testimony that she would visit with her daughter at her daughter’s home when the Father was not present. She presented no testimony as to having spent any meaningful, quality time with the children. Maternal Grandmother was unable to specify which dates, holidays, birthdays, vacations or any other times she actually saw the children. Notably, she did not give any testimony to demonstrate that she made any genuine effort to establish a close relationship with the Subject Children, either before or after the passing of their mother.The Maternal Grandmother testified that the Mother and the Father, along with the two oldest of the Subject Children, lived in her home for a period of six months in 2007. She further testified that she and the Maternal Grandfather had financially assisted the Mother and Father.The Maternal Grandmother testified that during the time period that her daughter was being treated for cervical cancer, she only saw the Subject Children when the Father brought them into the city, meaning Sloan Kettering, where the Mother was being treated. She did not testify what, if any, efforts she made to visit with the Subject Children outside of the hospital during this time.The Maternal Grandmother testified that since the death of her daughter, she tried to send presents one time through the court, however, she did not indicate when that was or describe what “through the court” meant.On cross-examination, the Maternal Grandmother was asked about two incidents reported to Dr. Benzaquen by the Father. Father had reported that on two separate occasions, the Maternal Grandmother appeared at his home unannounced and uninvited, shouting at him and blaming him for the death of her daughter. Father stated to Dr. Benzaquen that the Maternal Grandmother pointed to his genitals while yelling and accusing him of killing her daughter. The Report indicates that the Maternal Grandmother admitted that the two incidents occurred, however, when examined during the trial, she denied that these two incidents took place. She further stated that she had no idea why the Father was angry at her. The Court carefully observed her demeanor, body language, and tone during her examination with relation to these incidents and found her testimony not credible.She did not give any credible testimony that she made any genuine effort to establish a close, nurturing relationship with the Subject Children either prior to or after the passing of their Mother.Overall, the Court finds the testimony of the Maternal Grandmother to be not credible, based upon her body language, evasiveness, demeanor, the inconsistency of her statements to Dr. Benzaquen and her testimony at trial, the inconsistency of her testimony, her unease during certain questioning which could have been deemed to have an impact on her case-in-chief.DR. BENZAQUEN:Dr. Benzaquen’s curriculum vitae was entered into evidence and he was qualified as an expert witness. The Report was also entered into evidence.In the Report, Dr. Benzaquen recommended two hours, two times per week of unsupervised visitation with the Maternal Grandmother, however, during cross-examination, he changed his recommendation and instead suggested that the Maternal Grandmother should only be granted therapeutic visitation.Dr. Benzaquen testified that he never observed the Maternal Grandmother and the Subject Children interact as the Father refused to bring them to his office for that purpose. On cross-examination, he testified that such observed interaction was necessary and vital to making a recommendation.In the Report, Dr. Benzaquen indicates that one of the children, to wit: E.V., reported to him that the Maternal Grandfather “took a belt and spanked [D.V.], and sometimes left a mark”. The Report indicates that the Subject Children stated that their parents, and specifically the Father, did not and does not discipline them physically, but rather they are sent to their room or to time out. Dr. Benzaquen indicated that corporal punishment, specifically, ear pulling, is not a traumatic experience. The Report did not analyze how corporal punishment, which the Subject Children did not receive from their parents, could have affected them, nor did Dr. Benzaquen’s testimony expound on this issue. Nor did Dr. Benzaquen question the Maternal Grandfather about the allegations of the Subject Children regarding any corporal punishment.Dr. Benzaquen testified that his sole interview of the Maternal Grandfather was conducted by telephone, and as such, he was not able to observe the Maternal Grandfather’s attitude and demeanor during the interview.Dr. Benzaquen, in his Report and during his examination, detailed the numerous potential positive effects upon the Subject Children which may result by spending time with the Maternal Grandmother, but did not indicate whether he considered any potential negative effects that may result for the Subject Children if they were to be ordered to visit with the Maternal Grandmother.On page 15 of the Report, Dr. Benzaquen indicates that the Maternal Grandmother “may harbor angry feelings which could show as varying phases of irritability and apathy. Despite these angry reactions, she is apt to have a poor awareness of how her hostility and behavior may alienate others. Insight into her problems appears limited.”On page 18 of the Report, Dr. Benzaquen indicates that “it is clear that the children respect and listen to their Father. They also seem to feel comfortable and secure in his presence. [Father] communicates clearly with the children and they have no difficulties understanding him.” Dr. Benzaquen further noted in the Report that the Father did not speak negatively about the Maternal Grandmother in front of the Subject Children and avoided the subject altogether.On page 34 of the Report, Dr. Benzaquen indicates that certain psychological literature suggests that grandparents can contribute to children’s development in a duel manner, i.e., directly by caregiving and by serving as interactive partners providing cognitive and social stimulation; and indirectly as a resource of social support for parents. There is no information in the Report nor was there any testimony elicited at trial to demonstrate that the Maternal Grandmother had been, or would be, a caregiver for the Subject Children nor was there any testimony or evidence presented as to how the Maternal Grandmother would provide cognitive and social stimulation to the Subject Children. The evidence would, however, lead to the conclusion that the Maternal Grandmother would likely not be a resource of social support for the Father.Dr. Benzaquen testified that he never asked specifically the Maternal Grandmother when her visits with the Subject Children took place while her daughter was alive because he assumed that it was every day. He further testified that he never asked the Subject Children if the Maternal Grandmother took them places, attended their activities, or cooked them meals. The Report does not include any specific dates or even years as to when the Maternal Grandmother was present in the Subject Children’s lives. Although the Report indicates that the Maternal Grandmother was fully engaged with the Subject Children, this is based solely upon the self-reporting of the Maternal Grandmother. Dr. Benzaquen did not make further inquiry to corroborate the Maternal Grandmother’s statements with respect to the amount of time she spent with the Subject Children. Dr. Benzaquen also testified that he has no notes or records pertaining to the quality or quantity of the Maternal Grandmother’s contacts with the Subject Children.Dr. Benzaquen did testify that C.V. stated to him that the Mother would take her and the other children to visit the Maternal Grandmother, but he further testified he did not ask C.V. when or how frequently the visits occurred. He testified that C.V did not mention to him whether the Maternal Grandmother visited the Subject Children at their home or whether they went on outings with her. He further testified that none of the Subject Children reported any fun experiences or good memories with the Maternal Grandmother, and he testified that he did not directly ask them for such information, but rather asked them what type of relationship they had with the Maternal Grandmother and what the Maternal Grandmother did for them. The Report indicates that all of the Subject Children are opposed to any contact with the Maternal Grandmother and that each child feels that any contact would be a betrayal to the Father. It is noteworthy that the Subject Children reported to Dr. Benzaquen, as indicated in the Report, that they enjoy a close and meaningful relationship with not only the Father’s family, but also with the Mother’s extended family.The Forensic testified that there is research which shows that grandparents could have a very positive effect on the life of their grandchildren and that they can serve as role models. He went on to testify that grandparents can share their values, culture and traditions with their grandchildren. The record, however, is devoid of any evidence that she has shared or intends to share her values, culture and/or traditions with the Subject Children. There is no indication in the record that she spent any time with the Subject Children during special religious or cultural holidays. Nor is there any evidence in the record establishing in what ways the Maternal Grandmother could serve as a role model for the Subject Children.Dr. Benzaquen testified that he did not assess the potential trauma that would result to the Subject Children, especially D.V. who has special needs, if they were ordered to visit with the Maternal Grandmother.PATERNAL GRANDFATHER:The Paternal Grandfather testified that over the years prior to the passing of the Mother, he and the Maternal Grandmother provided financial assistance to the Mother, the Father, and the Subject Children.The Maternal Grandfather testified that when the Mother was diagnosed with cervical cancer, he and the Maternal Grandmother were completely invested in their daughter’s care, both emotionally and financially. He testified that during the time that the Mother was ill, the Father began to restrict his and the Maternal Grandmother’s access to the children. He further testified that he and the Maternal Grandmother paid for the Mother’s funeral expenses without any contribution from the Father.Paternal Grandfather testified that the Maternal Grandmother and the Mother had a very close relationship, and that the Mother frequently brought the Subject Children to visit with Maternal Grandparents. He did not provide any specific examples regarding the interactions between the Subject Children and the Maternal Grandmother, nor did he describe the nature or depth of the relationship between the Subject Children and the Maternal Grandmother.The Maternal Grandfather testified as to an incident at D.V.’s First Communion. He stated that the Father did not want the Maternal Grandparents there and he caused a scene and decided to remove the child from the ceremony because of their presence. The Maternal Grandfather testified that he and the Maternal Grandmother chose to the leave the ceremony so the child could continue to participate.The Court found the Paternal Grandfather’s testimony was credible based upon his demeanor, tone, and body language.RESPONDENT, FATHER:The Father testified as to the long-history of animosity between him and the Maternal Grandparents, and was able to articulate specific incidents which, according to him, lead to problems in their relationship. The Father emphasized that the Maternal Grandmother has never made any effort to repair or to “work on” her relationship with him.He testified that while the Mother was ill and seeking treatment at Sloan-Kettering, he received no assistance from the Maternal Grandparents with respect to the Subject Children, although, he indicated that it had been agreed that he would care for the Subject Children and they would care for the Mother. He testified that during the Mother’s treatment, the Maternal Grandmother never called him or had any phone conversations with him about the Subject Children, nor did the children ask speak to the Maternal Grandmother. He testified that while the Mother was ill and undergoing treatment, the Subject Children saw the Maternal Grandmother in the hallways of the hospital in “passing”, and did not offer or provide them with any emotional support. He testified that the Subject Children never asked for the Maternal Grandmother, and that the last time they saw her was at the Mother’s funeral where there was no interaction between them.The Father credibly testified that after the death of the Mother, the Maternal Grandmother came to his home unannounced and uninvited, and while motioning to his genitals, accused him of killing the Mother. He testified that the Subject Children were present in the home on both occasions, but that they did not directly witness the incidents, nor did they understand what was happening as the Maternal Grandmother was speaking in Spanish, a language in which they are not competent. He testified that the Maternal Grandmother has never apologized for those two incidents.The Father testified as to his strong objection to any contact between the Maternal Grandmother and the Subject Children. He testified that he is deeply concerned about the Maternal Grandmother’s inability to contain her disdain for him while around the Subject Children which he believes would have a detrimental effect on them.He testified that the Subject Children have progressed incredibly after the passing of the Mother. He testified that the Subject Children do well in school, participate in sports, most of which he coaches, and that they participate in various bereavement groups, in which they have become leaders and role models. He testified that the Subject Children are doing very well coping with the traumatic loss of the Mother. He testified that he lives for his children, and that though he is tough on them, they love and appreciate him.The Court assessed the Father’s demeanor, tone, and body language during his examination and found him to be credible.IN CAMERA INTERVIEW OF THE SUBJECT CHILDREN:Upon the conclusion of the testimony, the Court conducted an in camera interview of each of the Subject Children separately with the Attorney for the Children present throughout each interview. During the in camera interview, the Subject Children expressed their individual preferences and testified as to the nature and depth of their relationship with the Maternal Grandparents and the Father. The Court found the Subject Children to be mature, respectful, noticeably resilient and credible.CONCLUSIONS OF LAWIn any proceeding wherein one or more grandparents seeks visitation, the Court must make a two-part inquiry. The threshold issue is standing, and then once standing has been established, the Court must make a determination as to whether visitation with the grandparent is the best interests of the child(ren) (see, Matter of E.S. v. P.D., 8 NY3d 150, 157 [2007]; Matter of Steinhauser v. Haas, 40 AD3d 863 [2nd Dept. 2007]). A “best interests” determination lies within the sound discretion of the Court (see, Principato v. Lombardi, 19 AD3d 602, 603 [2nd Dept. 2005]).Pursuant to D.R.L §72 (1), “[w]here either or both of the parents of a minor child[ren], residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent” has standing to seek for visitation with such child(ren) (see, Matter of Steven Mastronardi, et al., 159 AD3d 907, citing Matter of E.S. v. P.D., supra at 157, Matter of Pinksy v. Botnick, 105 AD3d 852, 854 [2nd Dept. 2013], Matter of Steinhauser v. Haas, supra at 864). Here, the Subject Children’s Mother is deceased and accordingly, the Maternal Grandmother has an absolute right to standing.A final determination of the child(ren)’s best interests is made upon due consideration of the testimony and evidence presented, an assessment of the witness’s credibility, as well as an assessment of the character, demeanor, sincerity, temperament of the parent(s), and grandparent(s) (see Matter of Steven Mastronardi, supra at 908), and the other witnesses (see, Matter of Rory H. v. Mary M., 13 AD3d 373 [2nd Dept 2004]; Matter of McLaren v. Heuthe, 296 AD2d 500 [2nd Dept 2002]), as well as the overall effect of the grandparent(s) seeking such visitation. Here, the Court carefully assessed each witness and has herein above set forth its assessment of each witnesses’s credibility.There is a “strong presumption that [a] parent’s wishes represent the child’s best interests” (see, E.S. v. P.D., supra, citing Troxel v. Granville, 530 US 57 [2000]; and in making a best interests determination, the court should not lightly intrude on the family relationship against a fit parent’s wishes (Matter of E.S. v. P.D., supra at 157; Quinn v. Heffler, 102 AD3d 876 (2nd Dept. 2013). The record demonstrates that the Father is a loving, extremely competent and fit parent, who very clearly has the deep love, devotion, loyalty and respect of his children.Here, the record is clear that there exists a deep-rooted, and long lasting animosity between the Father and the Maternal Grandmother. Though the existence of animus between the parent(s) and the petitioning grandparent is a factor to be considered, it is not in se sufficient to deny visitation (see, Matter of Steven Mastronardi at 908, citing Matter of Winn v. Diaz, 156 AD3d 645, 646 [2nd Dept 2017]; Matter of Seddio v. Artura, 139 AD3d 1075, 1077 [2nd Dept 2016]. In the case at bar, the record demonstrates that the animosity between the parties has impacted the emotional well-being of the Subject Children insofar as they feel that contact with the Maternal Grandmother would be betrayal to the Father whom they adore and to whom they feel tremendous gratitude.While it is often true that a child’s ability to spend quality time with a grandparent or grandparents can have meaningful benefits to the child(ren) and that many of such benefits are solely due to the unique relationship between grandchild and grandparent and cannot be derived from any other relationship (see, Matter of E.S. v. P.D., 8 N.Y.3d 150 [2007], the record in this matter is devoid of any testimony or evidence that would demonstrate to the Court that the Maternal Grandmother spent quality time with the Subject Children or that there existed a meaningful relationship between them prior to the passing of the Mother. Furthermore, there is nothing in the record which would give this Court any ability to identify any benefits that the Subject Children would derive if they were to visit with the Maternal Grandmother.Although Dr. Benzaquen concluded that the Maternal Grandmother should be awarded therapeutic visitation with the children, the record does not support an award of such visitation, and while the recommendations of court appointed experts are entitled to some weight, the court is not required to follow them (see, McCoy v. McCoy, 43 AD3d 469 [2nd Dept. 2007]). Furthermore, the Court finds that the potential ramifications for the Subject Children’s mental and emotional well-being, if they are ordered to visit with a grandparent who so detests their Father and with whom they have never formed a strong bond, could be ruinous and could undermine the progress they have made thus far. Forcing such visitation by court-order could cause confusion, discomfort, apprehension and sadness for the Subject Children.The Court is mindful of the Father’s right to raise his children as he sees fit and appropriate. The Court finds that the Father’s objections to visitation are well-founded and his objections take into consideration the Subject Children’s mental and emotional well-being. The Father has demonstrated to this Court that he places the Subject Children first in his life and he has dedicated himself to raising them to honor the memory of their mother while working to heal the pain from her all too-early passing.The Father’s testimony and the Subject Children’s in camera testimony established that the children did not have a close or meaningful relationship with the children, nor did the children see the Maternal Grandmother on a consistent or frequent basis. Furthermore, in the Report, the Subject Children all indicated that they did not want to visit with their Maternal Grandmother.The Court’s heart weighs heavy with the tremendous loss that the parties and the four children have suffered, however, of paramount concern are the best interests of the children. The Court is mindful of the strong bond the Subject Children with the Father, and taking into consideration the absence of a meaningful relationship between the children and the Maternal Grandmother, the extreme animus between the parties, and the fitness of the Father as a parent, and finds that it simply cannot put these children into a situation which would cause them emotional turmoil, especially in light of how well they are coping with the loss of the Mother.Based upon the testimony, evidence and credibility of the witnesses, all weighed against the best interests of the Subject Children, the Court finds that it is not in the Subject Children’s best interests to grant visitation to the Maternal Grandmother. The petition is therefore DENIED with prejudice.Accordingly, it is herebyORDERED, that the petition filed by the Petitioner, Docket Numbers, is DENIED with prejudice.This Constitutes the Decision and Order of the Court.PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.Dated: August 27, 2018
