Termination of Grandparent Visitation Based on Change in Circumstances: Wilson v. McGlinchey

Michelle I. Benoit, Albany, for appellants. I. The Appellate Division erred in finding that continued visitation with Sarah was not in Sarah's best interests based on the trial court's decision to not order visitation with an infant sibling, Samantha, until after family counseling had begun and/or Samantha reached an age where she was cognizant that the visitation was occurring. II. The Appellate Division has changed the standard of review to modify an existing order of grandparent visitation from determining first if there is a change in circumstances since the time that the original order was entered, to allowing a de novo review of the best interests of the child upon an application by the parents objecting to continued visitation. ( Matter of Reese v. Jones, 249 AD2d 676; Matter of Emanuel S. v. Joseph E., 78 NY2d 178.) III. The Appellate Division, Third Department, erred in terminating an existing order of grandparent visitation on its determination that said visitation was not "meaningful" visitation. ( Matter of Emanuel S. v. Joseph E., 78 NY2d 178.) IV. The Appellate Division erred in disregarding the credibility determinations of the trial court and finding that the grandparents were equally responsible for the animosity and discord between the parties. ( Matter of Russo v. Russo, 257 AD2d 926; Matter of DiBerardino v. DiBerardino, 229 AD2d 539; Matter of Gloria R. v. Alfred R., 209 AD2d 179; Matter of Liantonio v. Davanzo, 303 AD2d 589; Matter of Beers v. Beers, 220 AD2d 839; Matter of Coulter v. Barber, 214 AD2d 195; Grenier v. Allen, 296 AD2d 619.) V. The Appellate Division erred in granting the relief requested by the parents when they came to the court with unclean hands. ( Kopsidus v. Krokos, 294 AD2d 406; National Distillers Chem. Corp. v. Seyopp Corp., 17 NY2d 12.) William V. O'Leary, Albany, for respondents. I. The Appellate Division appropriately terminated the grandparent visitation. ( Miller v. Pipia, 297 AD2d 362; Matter of Louise E.S. v. W. Stephen S., 64 NY2d 946; Matter of Rosiana C. v. Pierre S., 191 AD2d 432; Matter of Krebsbach v. Gallagher, 181 AD2d 363; Matter of Emanuel S. v. Joseph E., 78 NY2d 178; Friederwitzer v. Friederwitzer, 55 NY2d 89; Eschbach v. Eschbach, 56 NY2d 167; Matter of Apker v. Malchak, 112 AD2d 518; Matter of LaPorte v. Rivers, 144 AD2d 861; Matter of Donna Dorene G., 52 NY2d 890.) II. Section 72 of the Domestic Relations Law is unconstitutional. ( Troxel v. Granville, 530 US 57; Matter of Hertz v. Hertz, 186 Misc 2d 222; Meyer v. Nebraska, 262 US 390; Pierce v. Society of Sisters, 268 US 510; Prince v. Massachusetts, 321 US 158.) III. The doctrine of unclean hands does not apply. ( Friederwitzer v. Friederwitzer, 55 NY2d 89; Eschbach v. Eschbach, 56 NY2d 167.) Eliot Spitzer, Attorney General, Albany ( Evelyn M. Tenenbaum, Caitlin J. Halligan and Wayne L. Benjamin of counsel), in his statutory capacity under Executive Law § 71. Domestic Relations Law § 72 is constitutional because it gives due deference to the wishes of the fit parents. ( Troxel v. Granville, 530 US 57; United States v. Salerno, 481 US 739; Matter of Moran Towing Corp. v. Urbach, 99 NY2d 443; People v. Stuart, 100 NY2d 412; Matter of Morgan v. Grzesik, 287 AD2d 150; Matter of Smolen v. Smolen, 185 Misc 2d 828; Matter of Ziarno v. Ziarno, 285 AD2d 793; Matter of Emanuel S. v. Joseph E., 78 NY2d 178; Matter of Kenyon v. Kenyon, 251 AD2d 763; Matter of Coulter v. Barber, 214 AD2d 195.) Thomas C. Hall, Troy, Law Guardian. I. The appellate court erred in substituting its judgment with regard to a change in circumstances for the judgment of the trial court which found no such facts. II. The appellate court's determination that the McGlincheys have not established a meaningful relationship with the child is not supported by the facts.