May 28, 2019

A Cup of Joe | Who Decides Whether a Grandparent Should Have Visitation?

LOCATION: Nassau County, Long Island, New York

ENTER: Estee, a widowed mother of four young children; Jason, the deceased father; Janet, Jason’s mother, the grandmother.

Jason and Estee were married and had four children. Jason died when he was 35. The children were 9, 7, 5, and 3, at the time of their father’s death.

At the hospital just before Jason passed, as the ICU team was trying to resuscitate him, Jason’s mother, Janet, said to her sobbing daughter-in-law, "We are going to have to make a schedule with the kids." The date was November 27.

On January 3, Estee received a letter from Janet's attorney, threatening legal action if Estee did not permit Janet immediate visitation with the children, and requesting a response by noon the following day. Estee responded by inviting Janet over for a visit that evening. In a reply email, Janet asserted that her major concern was access to the children going forward, which the mother's email did not address, and requested that Estee respond to Janet's attorney as to when Estee or her lawyer could meet before the end of the week. Estee invited Janet to her home to visit with the children on January 8. Nevertheless, three days later, and approximately six weeks after Jason's death, Janet caused the mother to be served with a petition for visitation while Estee was at home with the children.

Family Court

At the hearing in February, the grandmother testified that she had a close relationship with the children. The grandmother also acknowledged that Estee was a fit parent. Estee testified that after she was served at home with the petition, the three older children, who were grieving the death of their father, became "hysterical" upon learning that their mother had to go to court. Estee testified that by initiating this proceeding, the grandmother had caused the three older children to become fearful that the grandmother was going to take them away. Estee testified that the children needed time to get over their fears, and to deal with the fact that their father had passed away.

The attorney for Estee’s children informed the court that the children did not wish to see their grandparents. (Children are automatically appointed an independent attorney in cases like this.).

The children’s therapist reported that the children were experiencing symptoms common to "complicated bereavement." Also, the three older children had reported having bad dreams about seeing their grandmother and that she would take them away. He concluded that for the sake of the children's future relationship with the grandmother, "it would be unwise to have them pair thoughts of fear of seeing her with their father's passing," and that forcing an interaction would only strengthen their fears.

Remarkably, on March 22, the court allowed scheduled visitation: three hours of visitation with the children every other Sunday commencing on June 3, as well as such other visitation as to which Estee and Janet agreed. Also, Estee, Janet, and the children had to go to therapy. The court also directed the grandmother and the children to communicate daily via email until visitation commenced.

On March 23, the same day the grandmother received a copy of the March 22, order, she sent an email to Estee informing her that she would be emailing the children daily starting that day, requesting that Estee direct the two older children to respond to the emails and directing that either Estee or the two older children respond on behalf of the two younger children.

Estee had enough and filed her own petition to stop the visitation.

Here is why: the grandmother, without authorization, began attending the children's after-school and extracurricular activities. On one occasion, the grandmother showed up at one of the children's after-school activities and watched her through the windows of the gym. The child did not go to the bathroom because the grandmother was staring at her through the window next to the bathroom and that the child had reported feeling "stalked." The grandmother had contacted school officials and the children's coaches and demanded inclusion on mailing lists relating to the children's schedules and activities.

The grandmother's conduct had caused the children distress and had led to two of the children refusing to attend their little league baseball games. The grandmother and her husband showed up at the kindergarten graduation ceremony of one of the children, and, after the ceremony, each stood at opposite corners of the "party room" by the exit doors. A security guard noticed what was happening, and escorted Estee and the child to a classroom where they remained during the party.

Yet again, the Court denied Estee's motion. Estee appealed.

The Appeal

The appeals court noted that the death of the children's father provided the grandmother with automatic standing to seek visitation.  But that was not the end. The court stated that the trial court failed to give appropriate weight to Estee's testimony, the report of the children's’ therapist, and the children's apprehension regarding visitation with the grandmother, which all together established that visitation was not in the best interests of the children. And that is the test: Best Interests of the Children (when the parent is fit). Not to mention that the attorney for the children supported the denial of visitation.

Mother wins. No visitation until mother says it is okay.

Here is the case:



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