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GRANDMOTHER’S APPEAL OF THE DENIAL OF VISITATION HEARD DESPITE THE FACT THAT GRANDMOTHER HAD BEEN GRANTED VISITATION WHILE THE APPEAL WAS PENDING; DISSENT ARGUED THE EXCEPTION TO THE MOOTNESS DOCTRINE SHOULD NOT HAVE BEEN APPLIED (FOURTH DEPT).

The Fourth Department affirmed Family Court’s denial of grandmother’s petition for custody and visitation and heard the appeal despite the fact that grandmother was subsequently granted visitation. The majority applied the exception to the mootness doctrine to hear the appeal. An extensive dissent argued the exception to the mootness doctrine did not apply and the appeal should have been dismissed:

We reject the grandmother’s contention that the court erred in denying her petition for custody and granting custody to the mother. “It is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’ ” … . Here, the grandmother failed to meet her burden of establishing that extraordinary circumstances exist to warrant an inquiry into whether an award of custody to the grandmother is in the best interests of the child … . In particular, we conclude that the grandmother failed to establish her claim that the mother suffered from unaddressed, serious mental health issues that would warrant a finding of extraordinary circumstances … .

Contrary to the grandmother’s further contention, we conclude that, as of the time that the order was entered, the record supports the court’s determination that it was in the best interests of the subject child to deny the grandmother visitation “in view of  grandmother’s failure to abide by court orders, the grandmother’s animosity toward the [mother], with whom the child[ now] reside[s], and the fact that the grandmother frequently engaged in acts that undermined the subject child[]’s relationship with” the mother … . It is well settled that “a court’s determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record” … , and we perceive no basis for disturbing the court’s determination here … . Matter of Smith v Ballam, 2019 NY Slip Op 07170, Fourth Dept 10-4-19

 

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