Grandparents’ visitation petition reinstated

A state appeals court has reversed a lower court ruling in a case where the judge denied a petition from a couple seeking visitation rights with their grandchildren.

In November 2021, state Supreme Court Justice Richard A. Dollinger granted the respondents’ motion for summary judgment.

The Appellate Division of state Supreme Court, Fourth Department, reversed Dollinger’s ruling, reinstated the petition and sent the case back to Supreme Court.

Petitioners Debra A. Demarco and Peter Demarco filed a petition under New York State Domestic Relations Law seeking visitation with their grandchildren.

After a hearing on the petitions started, Dollinger ended the hearing before the Demarcos completed the presentation of their case and told the parties that he would entertain written submissions “on the issue whether petitioners could maintain their petitions in light of the ostensibly undisputed evidence of acrimony between the parties and respondents’ strenuous objection to visitation.”

The respondents, Dominick A. Severance and Ashley M. Severance, filed a motion for summary judgment to dismiss the petitions.

Dollinger granted the motion. He presumed that the Demarcos had standing, and then reasoned that visitation with the grandparents was not in the children’s best interests.

The Demarcos appealed to the Fourth Department.

“We agree with petitioners that, under the circumstances of this case, the court erred in granting respondents’ motion and in terminating the hearing before petitioners had completed the presentation of their case,” the Fourth Department wrote.

Even after a grandparent has established standing to seek visitation, they still must establish that visitation is in the best interests of the grandchild, the court wrote.

The factors to be considered include whether the grandparents and grandchildren have a preexisting relationship, whether the grandparents support or undermine the grandchildren’s relationship with their parents, and whether there is any animosity between the parents and the grandparents, the court wrote.

Visitation and custody determinations should be made only after a full and plenary hearing and inquiry, the court wrote.

“Upon our review of the record, we conclude that, absent a full evidentiary hearing … the court here lacked sufficient evidence …  to enable it to undertake a comprehensive independent review of the children’s best interests,” the court wrote.

“We therefore reverse the order, deny the motion, reinstate the petitions, and remit the matter to Supreme Court for a full evidentiary hearing on the petitions,” the court wrote.

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