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THE ORDER WAS NOT ENTERED ON CONSENT AND THEREFORE WAS APPEALABLE; GRANDPARENTS’ PETITIONS FOR VISITATION SHOULD NOT HAVE BEEN GRANTED ABSENT A FULL TRIAL (FIRST DEPT).

The First Department, after noting the order was not entered on consent and was therefore appealable, determined the grandparents should not have been awarded visitation absent a full trial:

In the absence of consent, Family Court should not have awarded the paternal grandparents visitation without conducting a full trial. The decision was based only on the grandmother’s partial testimony. The separately petitioning grandfather did not testify. The mother was not present due to a medical procedure she was undergoing in North Carolina. Even if the court was justified in drawing a negative inference from her failure to give testimony … , the court failed to afford the attorney for the child (AFC) an opportunity to ascertain the seven-year-old child’s position … . Although the Family Court appropriately appointed an AFC, he did not let her do her job. The child’s position in this case was particularly important because of the mother’s representations that the child did not want to see the grandparents so soon following her father’s death and would be traumatized by such visitation. In addition, each of the grandparents brought separate petitions and each was separately represented in this matter. Although there is some indication that the grandparents are separated, because of the truncated record, there is insufficient information to support the court’s having jointly awarded jointly awarded them visitation with the child. Without a full hearing, the record is insufficient to determine whether visitation with the paternal grandparents is in the child’s best interests … . If after a full hearing upon remand the Family Court determines that grandparental visitation is in the child’s best interest, it should also clarify the award of visitation rights vis-a-vis each grandparent, given that they filed separate petitions and were not jointly represented by counsel, and thus in fact may be separated. Matter of Donna F.T., 2020 NY Slip Op 03469, First Dept 6-18-20

 

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