Decision on Motion The child who is the subject of this visitation petition is L.G., date of birth November 22, 2015. Respondent L.A. is L.G.’s mother. Respondent N.G. is L.G.’s putative father. Petitioner C.D. alleges that she is L.G.’s paternal grandmother in that she is the mother of N.G. The petitioner also alleges that she lived with the mother, her son and the child for a two year period. Respondent-mother has filed the instant motion seeking an order dismissing the petition on the grounds that petitioner lacks standing. Petitioner opposes the motion.A grandparent has standing to seek an order of visitation with a child when one or both of the parents are deceased or under circumstances where equity would see fit to intervene. DRL 72; E.S.v P.D., 8 N.Y.3d 150, 831 N.Y.S.2d 96 (2007). In many cases, both reported and unreported, the issue for the court to determine is whether equitable circumstances exist to justify a finding that the grandparent has standing to seek visits. The issues of paternity and grandparentage in those cases are either not disputed or are resolved through proof of a marriage invoking the presumption of DRL 24 or through the introduction into the record of an acknowledgment of paternity under PHL 4135-b or an order of filiation under FCA 542. However in this case the respondent-mother seeks dismissal on the ground that petitioner has not established that she is in fact the child’s paternal grandmother. Respondent-mother argues that there is no order of filiation and no acknowledgment of paternity and that under FCA 522 petitioner would not have standing to commence a paternity case.DRL 72 does not specify the manner in which a putative grandparent must establish their grandparentage. Certainly, being the parent of a person who has been legally established as the child’s father through an order of filiation or acknowledgment of paternity would be a direct way of clearing this threshold burden. However, the language of DRL 72 does not provide that petitioner must show a pre-existing order or acknowledgment. Under the wording of the statute, petitioner must allege that she is a grandparent and, to the extent applicable here, that circumstances exist where equity would see fit to intervene. She has pled both of those in her sworn, verified petition. It is interesting to note that respondent has not controverted petitioner’s allegation that she is L.G.’s paternal grandmother. Respondent has not submitted a responsive pleading and did not submit an affidavit as part of her motion. While written, responsive pleadings are not the norm in this court and in this area of practice there is nothing prohibiting them from being filed and they are authorized in special proceedings under CPLR 402. And certainly a motion to dismiss would provide the opportunity for respondent to address the important question of paternity. However, she has not submitted her own affidavit and has chosen to remain silent in the face of petitioner’s sworn statement that she is the mother of L.G.’s father.Even if respondent had challenged petitioner’s sworn statement of being a grandmother, petitioner can attempt to prove it through means other than an order or an acknowledgment. An illustrative case on this point is Loretta D v. Commissioner of Social Services of the City of New York, 177 A.D.2d 573, 576 N.Y.S.2d 164 (2d Dept., 1991). In that case the petitioner was the putative paternal grandmother and the child was in foster care. Paternity had not been established and no paternity case was pending. The putative father was deceased, which would have limited any paternity case to the circumstances listed in FCA 519. The court ruled that the putative paternal grandmother could establish that she was a grandparent and therefore potentially had standing through evidence other than a legal determination of paternity. That evidence included, inter alia, the petitioner’s own uncontradicted sworn statement.Another instructive case is Matter of Jordan, 60 A.D.3d 764, 875 N.Y.S.2d 188 (2d Dept., 2009), cited by both parties. In that case the trial court ruled that the petitioner, who was the putative paternal grandmother, had standing to seek visits. The appellate court reversed. The Appellate Division noted that there was no order of filiation and no acknowledgment of paternity. However, the court also noted that there had been a trial on the issue and at that trial the petitioner had not shown facts that would establish by clear and convincing evidence that her son was the child’s father. Such evidence would have to be other than an order of filiation or acknowledgment of paternity since those would not so much be evidence on the issue of paternity but would be dispositive of it. Had the Appellate Division wished to announce a bright line rule that prohibited a putative grandparent from seeking visits absent an order of filiation or acknowledgment it could have done so by ending its decision with that point. But it chose not to. Rather, the appellate court went on to observe, without critical comment, that the trial court gave petitioner the opportunity to otherwise prove that her son was the child’s father through clear and convincing evidence. The court did not rule that petitioner should have been denied the opportunity to present sufficient factual evidence but that, having been given that opportunity failed to do so.Based on the foregoing, petitioner should have the opportunity at an evidentiary hearing to prove by clear and convincing evidence that she is the child’s paternal grandmother. If successful, petitioner would then have the burden of showing by a preponderance of the evidence that conditions exist where equity would see fit to intervene to permit her to have standing to seek visitation if such visitation would be in the child’s best interest. The motion is therefore denied.Dated: April 4, 2019
