                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 31, 2016                    519686
________________________________

In the Matter of DEBBIE
   VANDENBURG,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

JESSICA VANDENBURG,
                    Respondent,
                    et al.,
                    Respondent.
________________________________


Calendar Date:   February 19, 2016

Before:   Peters, P.J., Garry, Rose, Lynch and Clark, JJ.

                             __________


     Tammy J. Arquette, Clifton Park, for appellant.

     Renee L. Litz-Taylor, Schenectady, for respondent.

     Lawrence Dahlke, Schenectady, attorney for the child.

                             __________


Clark, J.

      Appeal from an order of the Family Court of Schenectady
County (Burke, J.), entered July 21, 2014, which dismissed
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, for an order of visitation with respondents'
child.

      Petitioner is the maternal grandmother of a child born to
respondents in 2011. In 2013, as a result of her "strained"
relationship with respondent Jessica Vandenburg (hereinafter the
mother), petitioner commenced this Family Ct Act article 6
proceeding seeking visitation with the child. Following a trial,
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Family Court concluded that petitioner had established standing
to seek visitation, but that visitation was not in the child's
best interests and it therefore dismissed her application.
Petitioner appeals.

      In seeking visitation with his or her grandchild, a
petitioning grandparent must first establish that he or she has
standing pursuant to Domestic Relations Law § 72 (1) and, second,
that visitation is in the best interests of the child (see Matter
of E.S. v P.D., 8 NY3d 150, 157 [2007]; Matter of Wilson v
McGlinchey, 2 NY3d 375, 380 [2004]). Where the child's parents
are living, the grandparent may establish standing by
demonstrating that "conditions exist which equity would see fit
to intervene" (Domestic Relations Law § 72 [1]; see Matter of
Wilson v McGlinchey, 2 NY3d at 380; Matter of Rubel v Wilson, 111
AD3d 1065, 1067 [2013]). The grandparent "must establish a
sufficient existing relationship with [his or her] grandchild, or
in cases where that has been frustrated by the parents, a
sufficient effort to establish one, so that the court perceives
it as one deserving the court's intervention" (Matter of Emanuel
S. v Joseph E., 78 NY2d 178, 182 [1991]; accord Matter of Roberts
v Roberts, 81 AD3d 1117, 1118 [2011]). If the parents have
impaired the grandparent's ability to foster a relationship with
the child, "the grandparent[] must demonstrate that [he or she]
did everything possible under the circumstances to establish a
relationship with the[] grandchild[]" (Matter of Couse v Couse,
72 AD3d 1231, 1232 [2010]; see Matter of Rubel v Wilson, 111 AD3d
at 1067).

      Here, although they disagreed as to the number of visits
and the length of time over which the visits occurred, both
petitioner and the mother testified that petitioner cared for the
child during the early months of her life. Petitioner stated
that, when her visits with the child ceased in early 2012, she
regularly called and sent text messages to the mother asking to
see the child, but that the mother rarely responded. Petitioner
also asserted that she attempted to send cards to the child and
that, on one occasion, she placed a card and a balloon for the
child on the mother's car. Moreover, the record revealed that
petitioner has repeatedly and consistently sought visitation with
the child, having filed three prior petitions seeking such
                              -3-                519686

relief. Petitioner withdrew each of those prior petitions after
the mother agreed to afford her visitation and, while these
periods of visitation were short lived, the mother testified that
she has permitted petitioner to visit with the child at least a
handful of times since January 2012. As this evidence
demonstrated that petitioner developed a relationship with the
child early on in her life and thereafter made repeated efforts
to continue that relationship, Family Court properly determined
that petitioner established her standing to seek visitation with
the child (see Matter of Laudadio v Laudadio, 104 AD3d 1091,
1092-1093 [2013]; see generally Matter of Waverly v Gibson, 79
AD3d 897, 899 [2010]).

      The determination of whether visitation with a grandparent
is in the child's best interests requires evaluation of "a
variety of factors, including 'the nature and extent of the
existing relationship between the grandparent and child, . . .
the basis and reasonableness of the parent's objections, the
grandparent's nurturing skills and attitude toward the parent[s],
the attorney for the child's assessment and the child's wishes'"
(Matter of Articolo v Grasso, 132 AD3d 1193, 1194 [2015], quoting
Matter of Stellone v Kelly, 45 AD3d 1202, 1204-1205 [2007]).
"[C]ourts should not lightly intrude on the family relationship
against a fit parent's wishes[, as t]he presumption that a fit
parent's decisions are in the child's best interests is a strong
one" (Matter of E.S. v P.D., 8 NY3d at 157; see Matter of Hill v
Juhase, 105 AD3d 1278, 1280 [2013]).

      The record clearly established a breakdown of the
relationship between petitioner and the mother and that efforts
to repair their relationship had been unsuccessful. In fact, one
attempt to resolve their differences nearly led to a physical
altercation. While the existence of animosity between petitioner
and the mother is not, in isolation, sufficient to support
denying petitioner visitation with the child (see Matter of E.S.
v P.D., 8 NY3d at 157; Matter of Stellone v Kelly, 45 AD3d at
1204), several witnesses also consistently testified that
petitioner had a quick temper, used foul language in the presence
of her grandchildren and often directed disparaging or demeaning
comments at various members of her family, including children.
Considering the foregoing testimony, which was credited by Family
                              -4-                  519686

Court, and the attorney for the child's support for the denial of
visitation to petitioner, we conclude that there is a sound and
substantial basis in the record for Family Court's determination
that an order of grandparent visitation, in the face of
respondents' objections, was not in the child's best interests
(see Matter of Articolo v Grasso, 132 AD3d at 1194-1195; Matter
of Couse v Couse, 72 AD3d at 1233). Contrary to petitioner's
contention, the court was not required to direct visitation
simply because the mother expressed that she was not opposed to
allowing petitioner limited and supervised visitation with the
child on a discretionary basis (see generally Matter of Couse v
Couse, 72 AD3d at 1233).

     Peters, P.J., Garry, Rose and Lynch, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
