Unfounded Abuse Allegations Do Not Defeat Grandparent Visitation: Third Department Clarifies Standing and Best-Interests Under DRL § 72

Introduction

In Dianne SS. v. Jamie TT., 2025 N.Y. Slip Op. 1023 (3d Dept Feb. 20, 2025), the Appellate Division, Third Department, affirmed a Family Court order granting a maternal grandmother visitation with her two young grandchildren over the mother’s objection. The case squarely applies and clarifies New York’s two-step framework for grandparent visitation petitions under Domestic Relations Law § 72(1): first, the threshold question of standing based on equitable circumstances when both parents are alive; and second, whether visitation serves the children’s best interests.

The opinion addresses three notable issues. First, it illustrates how a court evaluates “equitable circumstances” for standing where a parent has cut off contact, especially where the parent’s stated objections rest on allegations later discredited or deemed unfounded. Second, it reinforces that, while a fit parent’s decision is entitled to a presumption, persistent animosity or repeated but uncorroborated allegations do not, standing alone, defeat visitation when a significant grandparent-grandchild bond is shown. Third, it rejects an ineffective assistance of counsel claim premised on trial counsel’s failure to call a mental-health provider, and reiterates that appellate courts will not consider materials dehors the record.

Parties included the maternal grandmother (petitioner), the children’s mother (respondent-appellant), and an attorney for the children who supported the Family Court’s ruling. The court’s analysis is fact-intensive but yields several doctrinal takeaways with practical implications for future grandparent visitation disputes, especially those complicated by intra-family abuse allegations.

Summary of the Opinion

After the mother terminated the grandmother’s contact in late 2021 and entirely by March 2022, the grandmother filed for visitation under Family Court Act article 6 and DRL § 72. Following a fact-finding hearing, Family Court granted a structured visitation schedule. On appeal, the Third Department affirmed, concluding:

Standing: The grandmother established standing through equitable circumstances by showing a substantial, preexisting relationship with both children and reasonable efforts to continue the relationship when the mother blocked access. The court specifically considered the nature and extent of their relationship and the bases of the mother’s objections (including allegations of abuse), finding the record did not support those objections.
Best Interests: The court credited evidence that the grandmother was a fit, loving, and appropriate caregiver who had long provided care, supervision, and material support. It found the mother’s objections rested on unreported or later-discredited abuse allegations, while neutral witnesses vouchsafed the grandmother’s appropriateness. The attorney for the children urged affirmance, and the record provided a sound and substantial basis for the Family Court’s credibility findings and best-interests determination.
Ineffective Assistance: The mother failed to show deprivation of meaningful representation based on counsel’s decision not to call the mother’s mental-health counselor. The court noted strategic reasons why such testimony might have been counterproductive given credibility problems and subsequent unfounded allegations against other relatives. The appellate court also declined to consider a letter from the counselor that was not in the Family Court record.

Analysis

Precedents Cited and Their Influence

The opinion carefully tracks the Third Department’s established two-step grandparent visitation framework:

DRL § 72(1) and standing via “equitable circumstances” where both parents are alive. The court cites Matter of Anne MM. v. Vasiliki NN., 203 A.D.3d 1476 (3d Dept 2022), emphasizing that a grandparent must show either an existing significant relationship or reasonable efforts to cultivate one when thwarted by a parent. Efforts are measured against “what he or she could reasonably have done under the circumstances” (quoting Matter of Carol E. v. Robert E., 183 A.D.3d 1154 [3d Dept 2020]).
The “essential components” of standing—nature and extent of the grandparent-grandchild relationship and the nature/basis of the parent’s objection—derive from Matter of Susan II. v. Laura JJ., 176 A.D.3d 1325 (3d Dept 2019), lv denied 34 N.Y.3d 909 (2020).
On best interests, the court draws factors from Matter of Daniel RR. v. Heather RR., 221 A.D.3d 1301 (3d Dept 2023), including the relationship’s quality, grandparent’s nurturing ability, attitude toward custodial parent, reasons for parental objection, children’s preference, and the attorney for the children’s position.
The opinion reiterates that a fit parent’s decision is presumptively in the child’s best interests, but neither parental animosity nor presumed child wishes, standing alone, is a proper reason to deny visitation—citing Matter of Marilyn Y. v. Carmella Z., 230 A.D.3d 1402 (3d Dept 2024).
The appellate standard—deference to Family Court on visitation so long as its findings have a “sound and substantial basis”—is anchored in Matter of Melissa X. v. Javon Y., 200 A.D.3d 1451 (3d Dept 2021), among others.
On ineffective assistance, the court applies the “meaningful representation” rubric common in Third Department family cases, citing Matter of Carly W. v. Mark V., 225 A.D.3d 984 (3d Dept 2024); Matter of Madelyn V. [Lucas W.-Jared V.], 199 A.D.3d 1249 (3d Dept 2021), lv denied 38 N.Y.3d 901 (2022); Matter of Audreanna VV. v. Nancy WW., 158 A.D.3d 1007 (3d Dept 2018); and Matter of Jacklyn PP. v. Jonathan QQ., 221 A.D.3d 1293 (3d Dept 2023).
The refusal to consider materials dehors the record is consistent with GINTELL v. COLEMAN, 136 A.D.2d 515 (1st Dept 1988) and SLEASMAN v. SHERWOOD, 212 A.D.2d 868 (3d Dept 1995).

Together, these authorities furnish a disciplined template: threshold standing analyzed through the lens of relationship and parental objections; then a holistic best-interests evaluation, with due respect to a fit parent’s decision but no single factor controlling—particularly where the record undermines the parent’s proffered reasons.

Legal Reasoning

Standing. The court first established that the grandmother had a significant pre-existing relationship with both children: she was present at the older child’s birth, promptly met the younger child, lived with the family during two intervals, provided substantial childcare and financial support (including a significant share of rent), regularly babysat, and transported children from daycare. The occasional lesser frequency of contact with the younger child was credibly linked to COVID-19 constraints and protocols, including hospital restrictions that explained the grandmother’s absence during the younger child’s delivery.

Crucially, once the mother cut off contact, the grandmother’s continued efforts—delivering birthday and holiday gifts and cards—were reasonable attempts to maintain a bond within the narrow space the mother allowed. The mother’s response (calling police over porch-delivered items) illustrated the degree of obstruction and supported measuring the grandmother’s “efforts” against constrained circumstances, as the standing cases require.

The court then scrutinized the mother’s objections. It found the record did not support her allegations that the grandmother sexually abused the older child. The allegations were not promptly reported to police (unlike the mother’s swift report over porch gifts), and, strikingly, the mother allowed continued unsupervised contact after the alleged incident. Family Court also noted that, after a paternal grandparent testified in favor of the maternal grandmother, the mother raised new sexual-abuse accusations against the paternal grandfather and the older child’s father; those allegations were determined to be unfounded. Additional testimony revealed that the mother severed contact between the children and other relatives (a sister and cousin) in a similar, unsubstantiated fashion during the same period. These facts, taken together, cast serious doubt on the credibility and bona fides of the mother’s objections.

Having weighed the “nature and extent” of the relationship and the “nature and basis” of the objection, the court affirmed that the grandmother had standing under DRL § 72(1).

Best Interests. Turning to the merits, the court credited testimony that the grandmother was a fit, appropriate, and loving caregiver with a long track record of nurturing the children and other grandchildren. Neutral witnesses corroborated her appropriate demeanor and interactions. The mother’s allegations—including historical claims about her own childhood and a claim of abuse of the older child—were discredited by Family Court, and subsequent fresh allegations were officially deemed unfounded. Against that evidentiary backdrop, the best-interests factors—including the quality of the relationship, ability to nurture, reasons for objection, and the attorney for the children’s position—supported visitation. The court emphasized that neither the presumption favoring a fit parent’s decision nor parental animosity alone suffices to deny visitation where the contrary evidence shows visitation is beneficial and safe.

Appellate Deference. The court reiterated that Family Court’s credibility determinations and crafted schedule are entitled to great deference absent a lack of sound and substantial basis. Because the record robustly supported the findings—particularly regarding the grandmother’s fitness and the unreliability of the mother’s objections—the Third Department declined to disturb either the visitation determination or the schedule.

Ineffective Assistance. The mother argued that her counsel was ineffective for not calling her mental-health counselor, who purportedly would corroborate disclosures of abuse by the grandmother. The Third Department rejected this claim for three reasons:

Strategy: Decisions whether to call a witness are quintessential trial strategy. Here, calling the counselor risked highlighting the mother’s credibility issues—most notably her permitting unsupervised contact after allegedly witnessing abuse, and her later (unfounded) accusations against other relatives.
Performance: The record showed counsel provided meaningful representation—delivering cogent openings and closings, lodging numerous sustained objections, and conducting pointed cross-examinations that elicited concessions from the grandmother.
Record on Appeal: The court refused to consider the counselor’s letter submitted for the first time on appeal (in a stay motion), as it was dehors the record.

Impact and Practical Implications

This decision reinforces and refines DRL § 72 applications in several important respects:

Credibility of Parental Objections: Allegations of abuse are appropriately taken seriously. But when they are unreported, contradicted by parental conduct (e.g., allowing continued unsupervised contact), or overshadowed by additional allegations deemed unfounded, courts may treat them as insufficient to defeat standing or best interests. This decision underscores that courts will examine both timing and consistency.
Proof of Relationship and Efforts: Grandparents should meticulously document their involvement—co-residence, caregiving, financial contributions, routines, transport, and holidays. When access is cut off, reasonable and respectful efforts to maintain a connection (e.g., gifts and cards) can satisfy the “efforts” prong when a parent frustrates contact.
Patterns of Severed Family Ties: Evidence that a parent has broadly severed children’s ties with multiple relatives without credible reasons can be probative of animus or arbitrariness, weakening objections to grandparent visitation.
Presumption Favoring Parental Decisions: The decision harmonizes the fit-parent presumption (rooted in constitutional jurisprudence) with New York’s statutory scheme by recognizing it as an important but not dispositive factor when a substantial grandparental bond exists and objections lack evidentiary support.
COVID-19 Context: Courts appropriately contextualize gaps or limitations in contact created by pandemic protocols; such constraints do not automatically diminish the sufficiency of a relationship for standing.
Appellate Practice: The opinion reiterates two appellate fundamentals—deference to Family Court’s credibility findings where a sound and substantial basis exists, and exclusion of extra-record materials on appeal.
Ineffective Assistance in Family Court: The “meaningful representation” standard remains the touchstone. Tactical choices, including whether to call corroborating witnesses, will generally not support reversal absent demonstrable prejudice and a showing that counsel’s performance, viewed in totality, fell below reasonable professional norms.

For practitioners, the case provides a practical checklist of proofs and pitfalls. For grandparents, it emphasizes sustained involvement and measured persistence; for parents, it cautions that unsupported or inconsistent allegations—especially when paired with conduct inconsistent with claimed fears—may undercut objections and credibility.

Complex Concepts Simplified

Standing (Grandparent Visitation): The legal right to bring a petition. Under DRL § 72(1), a grandparent gains standing if a parent is deceased or, when both parents are alive, if equitable circumstances exist—meaning a significant existing relationship, or reasonable efforts to create one when the parent has blocked access.
Equitable Circumstances: A fairness-based inquiry. Courts look at the nature and extent of the grandparent-grandchild relationship and the nature and credibility of the parent’s reasons for objecting.
Best Interests of the Child: The ultimate test in custody/visitation. Courts weigh multiple factors, including the quality of the relationship, the grandparent’s caregiving capacity, parental objections and their grounds, the children’s preferences (age-appropriate), and the attorney for the children’s position.
Fit-Parent Presumption: Courts presume that a fit parent’s decisions are in a child’s best interests, but the presumption does not automatically bar grandparent visitation when statutory criteria and evidence favor visitation.
Sound and Substantial Basis: Appellate review standard. If Family Court’s findings are supported by credible evidence in the record, appellate courts will not reweigh witness credibility or second-guess the visitation schedule.
Dehors the Record: Materials not presented to the trial court cannot be considered on appeal. Appellate courts decide cases based on the record below.
Ineffective Assistance (Meaningful Representation): A party must show they were denied meaningful legal representation. Disagreements with strategy (e.g., not calling a witness) usually do not suffice without proof of deficient performance and resulting prejudice.

Conclusion

Dianne SS. v. Jamie TT. affirms core principles governing grandparent visitation in New York while providing concrete guidance for contested cases involving serious but uncorroborated allegations. The Third Department:

Reaffirms a structured two-step analysis—standing via equitable circumstances followed by a best-interests determination—grounded in DRL § 72 and its precedents.
Clarifies that unreported, inconsistent, or subsequently unfounded abuse allegations cannot, without more, overcome a demonstrated positive grandparental relationship and reasonable efforts to maintain it when a parent obstructs contact.
Emphasizes deference to Family Court’s credibility assessments and visitation crafting when supported by a sound and substantial record.
Underscores that ineffective-assistance challenges must show more than hindsight disagreement; counsel’s total performance and strategy are assessed for meaningful representation.

The decision solidifies that in DRL § 72 cases, courts will look beyond parental animosity and assess, with rigor, the actual relationship, the reliability of objections, and the children’s welfare. Where, as here, the record supports a grandparent’s fitness and a substantive, loving bond, and undermines the parent’s rationale for severance, visitation will be sustained in the children’s best interests.