        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1135
CAF 11-02483
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.


IN THE MATTER OF WILLIAM M. HILGENBERG,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CHRISTOPHER A. HERTEL, RESPONDENT,
AND HEIDI D. HILGENBERG, RESPONDENT-APPELLANT.


KELLY M. CORBETT, FAYETTEVILLE, FOR RESPONDENT-APPELLANT.

KARIN H. MARRIS, ATTORNEY FOR THE CHILD, SYRACUSE, FOR KAMERI M.H.


     Appeal from an order of the Family Court, Onondaga County
(Salvatore Pavone, R.), entered October 25, 2011. The order, among
other things, awarded petitioner visitation with the subject child.

      It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the first and second
ordering paragraphs and as modified the order is affirmed without
costs, and the matter is remitted to Family Court, Onondaga County,
for further proceedings in accordance with the following Memorandum:
Petitioner grandfather, the father of respondent mother, commenced
this proceeding seeking visitation with his granddaughter (hereafter,
grandchild). The mother appeals from an order that, inter alia,
granted the petition and awarded the grandfather one weekend per month
of overnight visitation with the grandchild. Initially, we reject the
mother’s contention that the grandchild was deprived of effective
assistance of counsel in Family Court (see generally Matter of
Ferguson v Skelly, 80 AD3d 903, 906, lv denied 16 NY3d 710; Matter of
Sarah A., 60 AD3d 1293, 1294-1295; Matter of West v Turner, 38 AD3d
673, 674). The record does not support the mother’s allegation that
the Attorney for the Child failed to make a recommendation in
accordance with the grandchild’s wishes, or the mother’s implicit
contention that the Attorney for the Child was biased against her (see
generally Matter of Nicole VV., 296 AD2d 608, 614, lv denied 98 NY2d
616).

     We reject the mother’s conclusory assertion that Family Court
erred in concluding that the grandfather had standing to seek
visitation. A grandparent has standing to seek visitation with his or
her grandchildren pursuant to Domestic Relations Law § 72 (1) where,
inter alia, “circumstances show that conditions exist [in] which
equity would see fit to intervene.” The factors that a court must
consider in determining whether the grandparent made such a showing
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include the “nature and basis of the parents’ objection to visitation
. . . [and] the nature and extent of the grandparent-grandchild
relationship” (Matter of Emanuel S. v Joseph E., 78 NY2d 178, 182; see
Matter of Morgan v Grzesik, 287 AD2d 150, 154). Here, the court
properly concluded that the grandfather had demonstrated a long-
standing and loving relationship with the grandchild sufficient to
seek visitation with her.

     Upon demonstrating standing to seek visitation, however, a
grandparent must then establish that visitation is in the best
interests of the grandchild (see Emanuel S., 78 NY2d at 181). Among
the factors to be considered are whether the grandparent and
grandchild have a preexisting relationship, whether the grandparent
supports or undermines the grandchild’s relationship with his or her
parents, and whether there is any animosity between the parents and
the grandparent (see Matter of E.S. v P.D., 8 NY3d 150, 157-158).
Animosity alone is insufficient to deny visitation. “ ‘It is almost
too obvious to state that, in cases where grandparents must use legal
procedures to obtain visitation rights, some degree of animosity
exists between them and the party having custody of the
[grandchildren]. Were it otherwise, visitation could be achieved by
agreement’ ” (id. at 157, quoting Lo Presti v Lo Presti, 40 NY2d 522,
526). Furthermore, “the decision whether . . . 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
. . . becomes subject to judicial review, the court must accord at
least some special weight to the parent’s own determination” (Troxel v
Granville, 530 US 57, 70; see Morgan, 287 AD2d at 151). Thus, “the
courts should not lightly intrude on the family relationship against a
fit parent’s wishes. The presumption that a fit parent’s decisions
are in the [grand]child’s best interests is a strong one” (E.S., 8
NY3d at 157).

      Inasmuch as the court made no finding that the mother was not
fit, and the grandfather did not take a cross appeal from the order,
we must therefore begin by according “some special weight” to the
mother’s decision that the grandchild’s best interests are not served
by visitation with the grandfather (Troxel, 530 US at 70).
Furthermore, the court’s determination concerning whether to award
visitation “ ‘depends to a great extent upon its assessment of the
credibility of the witnesses and upon the assessments of the
character, temperament, and sincerity of the parents’ ” and
grandparents (Matter of Thomas v Thomas, 35 AD3d 868, 869; see Matter
of Steinhauser v Haas, 40 AD3d 863, 864). The court’s determination
concerning visitation will not be disturbed unless it lacks a sound
and substantial basis in the record (see Thomas, 35 AD3d at 869;
Matter of Keylikhes v Kiejliches, 25 AD3d 801, 801, lv denied 7 NY3d
710).

     Here, we conclude that the court’s determination lacks a sound
and substantial basis in the record insofar as it grants visitation to
the grandfather. The mother and the grandmother testified to serious
wrongdoing by the grandfather, including, inter alia, illegal drug use
and sales, and vehicular assault upon the mother’s boyfriend. The
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court failed to make any finding regarding the credibility of those
allegations, and thus we have no basis upon which to determine how
those allegations, which include serious misconduct, would impact the
determination whether visitation with the grandfather is in the
grandchild’s best interests. Furthermore, there is no evidence in the
record establishing that the grandfather previously has cared for the
grandchild overnight, or for as extensive a time as the full weekend
of visitation awarded by the court. “Given the . . . deficiencies in
the record . . . , this Court can neither conclude that a sound and
substantial basis exists for Family Court’s award of [visitation] to
the [grand]father . . . , nor can we accord appropriate weight to the
[court’s credibility determinations] in conducting our own independent
review” (Matter of Rivera v LaSalle, 84 AD3d 1436, 1440). We
therefore modify the order by vacating the first two ordering
paragraphs, and we remit the matter to Family Court for further
proceedings on the petition.




Entered:   November 9, 2012                     Frances E. Cafarell
                                                Clerk of the Court
