Before the Court is a Petition for Grandparent Access filed May 6, 2013 by Paternal Grandfather, Vasiliy D., (hereinafter referred to as "Petitioner") against Mother, Amie M., (hereinafter referred to as "Respondent") seeking access with the subject child, Leonardo D. (6) (hereinafter referred to as "Leo" or the child). A hearing was held on the above petition on February 27, 2014. Petitioner was present with his attorney, Laura Emerson, Esq.; Respondent was present with her attorney, Audrey Herman, Esq.; and Leigh Anderson, Esq. appeared as the Attorney for the Child. The only two witnesses were the parties: Vasiliy D. and Amie M.. All counsel submitted Closing Arguments/Proposed Statements of Disposition containing argument and case law to support their relative positions.

This Court has had the unique opportunity to evaluate and observe the demeanor, temperament and sincerity of each witness and weigh their respective credibility. This Court has further considered the Petition, the exhibit received in evidence together with the applicable statutory and case law and now makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

Petitioner is the paternal grandfather of the subject child. He is a 51 year old, Army trained, college educated electronics technician who immigrated to the United States from Ukraine in 1992. He resides in Depew, New York in a home that he owns. He testified that he is in very good health, and appeared as such to the Court. He testified that he is an active participant in local Ukrainian affairs and culture. Respondent is the child's mother. She is a 24 year old high school graduate and stay-at-home mother of both Leo and his younger half-sister, Riley Pearsa (1). She recently moved from West Seneca, New York, and now resides in Collins, New York in a home that she owns with her fiancé and Riley's father, Jacob P..

Yuriy D., Leo's father, committed suicide on April 2, 2013. Immediately prior to his death he was residing with Petitioner. In fact, both parties testified that, for a period of time between Leo's birth in March 2008 and sometime in or around 2010, Respondent, Leo's Father and Leo and all resided in the Petitioner's home. In or around 2010, after Respondent moved out of the Petitioner's home, she and Leo's Father entered into a Court Order on consent in which they enjoyed joint custody of the child with Respondent designated the primary residential parent and Father having liberal and open access with the child.Leo's father remained residing with Petitioner.

Both parties testified that prior to his death, Leo's Father had been faithfully exercising regular, weekly access with Leo pursuant to a 2012 Court Order which incorporated a Mediated Agreement entered into evidence as Petitioner's Exhibit 1. The regular parenting time Father enjoyed occurred in Petitioner's home and was essentially an alternating weekend schedule - after day care on Friday to Monday morning and on the alternate weekend, Friday after daycare to Saturday at noon.By all accounts Leo is an exceptionally inventive, articulate, lovable, energetic boy who has no particular special needs, except the tragic, special circumstance that comes with losing a parent due to suicide. Until his father passed away suddenly in April 2013, Leo had spent time every weekend in his grandfather's home - a place that is extremely familiar to him, where he has his own bedroom, clothing and toys. Leo has a paternal aunt who resides in North Carolina and a paternal great-uncle who resides in Florida. Petitioner is the one and only local, living paternal relative that Leo has.

It was uncontroverted that Leo and Petitioner share a unique, loving and close bond. Respondent testified that she believed Petitioner to be smart and well-read with a lovely home. There was ample testimony that Petitioner is devoted to Leo and a positive influence on the child. [*2]The Attorney for the Child strongly advocated for her client to have frequent, regular access with Petitioner to preserve their close bond and to sustain Leo's link with his Ukrainian cultural heritage.

There was testimony from both parties that Leo enjoys the time he spends with his "Dido" - which is the Ukrainian word for grandfather and what Leo calls Petitioner. It is further uncontroverted that Leo's Ukrainian heritage is of special importance to the child and a unique cultural identity that can be nurtured uniquely by Petitioner in the absence of his father.Petitioner testified that prior to his son's death, they were planning to enroll Leo in the local "Ukrainian School" which is a special cultural school where children, of Ukrainian heritage take classes on Saturday mornings to learn about Ukrainian culture, music, art and language. Both Leo's father and paternal aunt (Petitioner's children) attended the school. Petitioner testified that Leo's father died before he could enroll him. Respondent testified she would support Petitioner having access on certain Ukrainian holidays and has signed Leo up to play soccer, a sport that is important and dear to the paternal family.

Both parties testified that upon Leo's father's death, a "family meeting" was held that included Petitioner, Respondent and Respondent's mother. Both parties testified that at that meeting, Respondent acknowledged to Petitioner that she "would never keep Leo away from him" and suggested that he could "see Leo anytime he wanted". In fact, Petitioner testified that there was a verbal agreement that he could continue to see Leo each Friday overnight to Saturday. Shortly thereafter, about the time of Petitioner's first "pick up" for access, Respondent informed him that she would only agree to access one time per month for a few hours. The instant petition was filed on May 6, 2013.

At issue in this particular case is not whether Petitioner should have access with his grandson, but how much access would be in the child's best interests. [Petitioner clearly has standing pursuant to DRL § 72(1) and Respondent concedes that issue.] Both parties agree that the relationship between Leo and Petitioner is valuable and should be maintained and fostered. It is clear from the testimony of both parties that Petitioner has been an important and continuing presence in this child's life from his birth.

The parties agree that Petitioner should be awarded access with the child on Ukrainian holidays (Ukrainian Christmas, Easter, Independence Day as well as any other major Ukrainian holidays). Respondent agrees to afford Petitioner access around major American or traditional holidays and testified that she would keep Petitioner informed of Leo's school and extracurricular activities and progress. Yet, when it comes to regular access, the parties have a complete divergence. Petitioner seeks an alternate weekend schedule from Friday to Sunday and Respondent seeks to limit his access to one Saturday per month from 8:00am to 6:00pm.

Upon cross examination by the Attorney for the Child, Respondent was asked why she believed such limited contact would serve Leo's best interests. She responded by stating: "because [*3]I want my son home with me." When questioned whether she had considered her son's desires on the subject, Respondent stated that she did not feel it would be fair to Leo's other relatives, his maternal grandparents, her fiancé's parents, his maternal great-grandparents and other relatives if Petitioner were to be awarded any more access time than what she offered him. She was similarly non-responsive when asked if she had considered whether more time with Petitioner could serve as a source of emotional support for Leo as he heals from the loss of his father.

Parents have a fundamental right to make decisions regarding the care, custody and control of their children. Parental autonomy in this regard has long been recognized as a fundamental Constitutional right. Prince v. Massachusetts, 321 U.S. 158 (1944); Stanley v. Illinois, 405 U.S. 645 (1972); Troxel v. Granville, 530 US 57 (2000); Fitzpatrick v. Youngs, 186 Misc 2d 344 (Fam. Ct., Jefferson County 2000). Notwithstanding this fundamental right, such parental primacy rights are not unfettered or absolute.

In rendering this decision, the Court acknowledges the presumption that a fit parent's decision concerning grandparent access is a strong one. The Court has given special weight to the nature, reasonableness and basis of Respondent's objection to Leo having more frequent, regular access with Petitioner. Hilgenberg v. Hertel, 100 AD3d 1432 (4th Dept. 2012); Davis v. Davis, 188 Misc 2d 81 (Fam. Ct., Otsego County, 2001). In appropriate cases, the best interests of the child can take precedence over the parent's right to the care, custody and control of the child. An infant's welfare is accorded a higher place on the pedestal of personal human rights in this State than parental control of that child. Fitzpatrick v. Youngs, 186 Misc 2d at 347; see also, Davis v. Davis, 188 Misc 2d 81 (Fam.Ct., Otsego County 2001). Based on the totality and extraordinary nature of the circumstances, this Court believes firmly that this is one of those appropriate cases in which the best interests of the child must take precedence over his parent's right to control him.

Although there is no set formula for determining a child's best interests, in reaching this decision the Court has considered the nature and extent of the grandparent-grandchild relationship, the grandparent's nurturing skills and attitude toward the parent, as well as the assessment of the attorney for the child and the child's wishes. Burton v. Barrett, 104 AD3d 1084 (3d Dept., 2013); see also, Emanual S. v. Joseph E., 78 NY2d 178 (1991).

There is no evidence before the Court from which to conclude that limiting the child's time with Petitioner would serve his best interests in any way. In fact, this Court believes that limiting the child's regular time with Petitioner to only once per month would have a potentially harmful effect on him. Leo has developed an exceptionally close, loving and nurturing relationship with his paternal grandfather. Reducing the time he spends with him is incompatible with his best interests, particularly during this special time while he is still grieving the sudden loss of his father.

Respondent's misgivings about affording Petitioner and Leo an opportunity to enjoy anything more than once per month access appear to have arisen from her desire to give Leo a "normal life", [*4]which she defined as one in which Leo would not "bounce" back and forth to visit his paternal grandfather. Respondent reasoned that she thought once per month access would be "enough time" for Leo and his grandfather and really be best "for everyone" - specifically remarking that Leo has relationships with many other individuals such as maternal grandparents, great-grandparents and his "soon-to-be" (but unspecified as to how soon-to-be) step-father and his extended family.

The Court disagrees that one Saturday per month would be sufficient for Leo and his paternal grandfather to maintain their close relationship. This Court further disagrees that the schedule submitted by the Petitioner (alternating weekend access) would serve the child's best interests. Considering the child's age and based on the extraordinary circumstances presented by Leo's father's sudden death and unique cultural identity, the Court finds that the child's best interests would be served by more frequent contact with his paternal grandfather to avoid experiencing any further sense of loss.

Respondent expressed no concerns about Leo's safety in Petitioner's care; she did, however, express a desire to have more communication with Petitioner about what he and Leo do when they are together. Based on an assessment of his character and credibility, this Court believes that Petitioner would honor that request and provide any information to Respondent that she requests. There is nothing before the Court to suggest that there exists any real acrimony between the parties. While both parties expressed that their relationship had somewhat "cooled" due to this litigation, both seem capable and willing to support the other and act cooperatively.

NOW, THEREFORE, the Court having searched the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records, and having notified the attorneys for the parties and for the child of the results of these searches; And the Court having considered and relied upon the results of these searches in making this decision it is hereby

ORDERED, that the following conditions apply to all access hereinafter provided:

ORDERED, that the Petitioner shall enjoy the following holiday, vacation and days of special meaning access with the child: