Petitioners Ronald and Nancy D. commenced this proceeding against respondent, Erin V., seeking reasonable visitation with their granddaughter, M.Q., born xx/xx/2012. M.Q.'s father, the D's eldest son, died xx/xx/2013. Ms. V. opposes the petition, contending that any further relationship between the Ds and her daughter is not in the child's best interest. In 2014, the parties entered into a trial arrangement that provided for the grandparents' visitation with the child every other month for four-to-eight hours, in the presence of Ms. V., although not restricted to her home. In September 2015, petitioners moved to modify the visitation schedule. Respondent continued to oppose any and all visitation. After holding a trial in this matter, and giving due weight to Ms. V.'s parental views, the Court concludes that a continued relationship [*2]between M.Q. and her paternal grandparents is in her best interest. Accordingly, the Court is issuing an order directing continued visitation under a revised visitation schedule and terms, as discussed below.

Petitioners Ronald and Nancy D. reside in Yorktown, Westchester County. Ronald D. retired in 1988 as a Sergeant in the New York City Police Department. He is the Director of Security for Forbes Magazine and a security consultant for the Forbes family. Nancy D. has a 30-year career in nursing. She is currently Vice President for Nursing for Hudson River Health Center, and supervises nursing services at 27 sites. They are the parents of Ronald D., (Ron Jr.), who is now deceased, and two other grown children. In addition to M.Q., the Ds have five grandchildren.

Respondent Erin V. currently resides in Guilderland, New York. She is self-employed as a real property attorney and serves as a managing attorney for a patent law firm where her husband was a named partner. Ms. V. and Ron Jr. married in 2008 and resided near Albany, New York. On xx/xx/2012, their daughter M.Q. was born. Less than four months later, on xx/xx/2013, Ron Jr. died while he was away on business in South Korea. The Ds, Ms. V., and M.Q. spent some time together in the months after his death, but those visits ended in July 2013.

Petitioners commenced this proceeding in Westchester County in February 2014, seeking court-ordered visitation. They allege that Ms. V. has denied them visitation because the Ds' other son, the designated beneficiary of an insurance policy on Ron Jr.'s life, refused to share the proceeds of the life insurance policy with her and M.Q. Respondent answered, denying that allegation and asserting among other things that granting the Ds visitation with her daughter would not be in the child's best interest. On April 7, 2014, Supreme Court (Wood, J.) granted respondent's motion to change venue to Albany County.

On February 6, 2015, on the eve of trial and upon the agreement of the parties and their counsel, Supreme Court (Platkin, J.) issued a temporary order of grandparents' visitation. The temporary order directed that petitioners be able to visit M.Q. every other month on a Sunday, beginning February 15, 2015, for four to eight hours. Visitation was to be supervised by respondent but not restricted to respondent's home. The Court allowed reasonable flexibility, directed petitioners not to bring substantial gifts to the child without respondent's consent, and ordered a further court appearance in September 2015.

In the fall of 2015, petitioners sought a new visitation order that would allow them more frequent and longer visits with M.Q., including some at their own home, and contact with M.Q. through telephone calls, Face Time or Skype. Respondent opposed their request, as well as the continuation of visitation pursuant to the February 15, 2015 order. She requested a trial on the underlying petition. The trial was held on January 28 and 29, 2016. Having listened carefully to the testimony, having observed the demeanor of the witnesses, and having considered all the evidence and arguments of the parties, the Court makes the following factual findings.

Ms. V. and Ron Jr. were married in 2008. Ms. V. worked at her own business as a real estate attorney. Ron Jr. was a partner in a law firm that still bears his name, which Ms. V. still manages. Their marriage was somewhat troubled, and Ron Jr. battled substance abuse problems. Ms. V. testified that she and Ron Jr. visited the Ds infrequently over the years, in some years several times, and in others not at all. She testified that before visiting his parents, Ron Jr. would drink and take drugs excessively. Ms. V. described her relationship with the Ds during those years as "cordial" and "courteous," while Nancy D. believed they had a "good" relationship and [*3]felt "close" to Ms. V.

In the months before and after Ron Jr.'s death, the Ds were in frequent contact with both Ron Jr. and Ms. V. Mrs. D. testified that she spoke with Ron Jr. "just about every day," while admitting that most of her communications with Ms. V. were through her son. The Ds drove Ron Jr. to the airport for his flight to South Korea. In the days before his death, Nancy D. and Ms. V. communicated several times regarding their concerns about Ron Jr. and their inability to contact him. They continued their frequent communications, through visits, emails and telephone calls for a short while in the aftermath of his death. Those communications all but ceased when Ron Jr.'s brother refused to give Ms. V. and M.Q. the proceeds of a life insurance policy.

The Court finds that the Ds made continuous and sustained efforts to establish a relationship with M.Q. during the first year of her life. They drove nearly two hours from their home in Westchester County to the hospital in Albany the day before M.Q. was born, visited Ms. V. before the delivery, and visited M.Q. in the infant care unit after her birth. After they returned home from the hospital, the Ds visited with Ron Jr., Ms. V., and M.Q. at least once in November, once in December, and once in February 2013 before Ron Jr. left for South Korea.

In March 2013, after they learned of Ron Jr.'s death, the Ds drove to Albany to Ms. V.'s house to be with Ms. V. and M.Q., where they grieved and cried together. When his body was returned from South Korea, the Ds drove to the airport and followed the hearse to the funeral home in Albany. All four attended the funeral services in Albany and in Westchester County. When the Ds purchased a niche for Ron Jr.'s cremains, they also purchased niches for themselves and for Ms. V., to let her know she was considered part of the family, although they suspected she would move on with her life and choose not to use it. Later in March, during Easter weekend, Ms. V. and M.Q. stayed with the Ds in Yorktown. M.Q. slept in the Ds' bedroom both nights so that Ms. V. could get a better night's sleep. Ms. V. wrote in a later email that, at that time, she loved them all and that she hoped to visit them at least once each month.

In April, their relationship became strained. Ms. V. was confronted with the enormity of her circumstances as a new widow, grieving for the loss of her husband, caring for their infant daughter, and facing substantial financial difficulties. Ron Jr. had incurred several hundred thousands of dollars in debt. She had to find a new place to live because their lease was ending in June. When Ms. V. learned that Ron Jr.'s brother was the beneficiary of a substantial life insurance policy, she pleaded with the Ds to try to convince him to give some of those proceeds to her and M.Q.

Near the end of April 2013, Ms. V. sent an email to the Ds outlining her dire financial circumstances. She viewed it as a request for help, whether it was from the insurance proceeds or otherwise, and believed their refusal to provide financial help was an indication that the Ds did not really care about her and her daughter. The Ds thought the email was about the insurance proceeds. Mr. and Mrs. D. testified that they had had several conversations with their son, by telephone and at family meetings, where they tried to convince him to at least put a portion of the proceeds in a trust fund for M.Q. They were unsuccessful, however, and were afraid to push further, because they had already lost one son and were afraid to lose the other over this issue.

On May 21, 2013, the Ds sent Ms. V. an email that invited both Ms. V. and M.Q. to Yorktown for the weekend and proposed taking M.Q. to the Bronx Zoo, or alternatively, if she needed help in Albany, taking her to an amusement park or somewhere closer to her home. Ms. V. responded that she planned to start packing that weekend and continue over the next several [*4]weekends. The Ds offered to help by taking care of M.Q. while she packed, but Ms. V. declined, saying that she had plenty of help and would get back to them when they were settled in their new house. Also in May 2013, the Ds attended an awards ceremony for Ron Jr. in Rensselaer County, where they held M.Q. during the event. But they had limited communications with Ms. V. because they felt a chill in their relationship with her. The Ds again spent some time with Ms. V. and M.Q. on July 3, 2013.

From July to October 2013, the communications between the Ds and Ms. V. became very infrequent. Nancy testified that they began to realize that Ms. V. was angry with them and did not want them to see M.Q. Ms. V. testified that she had indeed become "angry" and "furious" with the Ds. On October 17, 2013, Ms. V. sent the Ds an email stating that although she "want[ed] nothing more than for [Mrs. D.] to be a big part of mine and [M.Q.'s] life," their refusal to turn over the insurance proceeds meant that they did not have M.Q.'s "best interests at heart." She closed the email with, "until you all make the decision to do the right thing, you won't be seeing me or M.Q."

On November 25, 2013, in an effort to avoid litigation, petitioners' counsel sent a letter to Ms. V. to try to arrange visitation, and again Ms. V. declined. On February 14, 2014, the Ds commenced this litigation seeking court-ordered visitation. On the eve of trial, the parties agreed to a visitation schedule during a trial period. Supreme Court issued a temporary order allowing the Ds to visit M.Q. every other month, beginning February 15, 2015, for four to eight hours. Visitation was to be supervised by respondent but not restricted to respondent's home.

After the temporary order was issued, before commencement of trial, the Ds had visited with M.Q. and Ms. V. five times, each time for six to eight hours. Their first visit with M.Q. took place at Ms. V.'s home, and the Ds had to wait for a while for M.Q. to nap. During the early visits, Mrs. D. explained to M.Q. that they were her grandparents and she believed M.Q. understood because she referred to her other grandmother. M.Q. called the Ds Nanny and Gaga until December of 2015, when M.Q. insisted on calling her paternal grandmother Nancy.

In April, June, September and December, the Ds met Ms. V. and M.Q. at Ms. V.'s house, but then went out to participate in an activity and share a meal. For example, they visited a trampoline park, shopped for clothes for M.Q., picked pumpkins, and saw a performance of Disney on Ice. Ms. V. characterized all five visits as "polite" and "courteous." While she testified that she was uncomfortable during these visits, she did not complain of discomfort to the Ds or seek court intervention.

Because their daughter lives nearby, the Ds have a particularly close relationship with their four granddaughters. They see their granddaughters at least twice each week and regularly eat Sunday dinners together. The Ds help carpool the girls to activities, and attend their concerts and sports events. The Ds' son lives about 45 minutes away; he is the father of their grandson. The Ds try to make it a "treat" for their grandchildren to visit them at their home, and often have family gatherings where their grandchildren can enjoy being and playing together. They enjoy family outings and vacations together.

For a while, Ms. V. had an amiable relationship with the Ds' daughter and the four granddaughters. She and M.Q. met them at a hockey game at a local college. In November 2013, Ms. V. invited them, but not the Ds, to M.Q.'s first birthday party. The daughter's husband spent some time with Ms. V. after Ron Jr.'s death helping her go through his financial papers. Ms. V. [*5]stopped visiting with the Ds' daughter and her family upon advice of counsel once this lawsuit was commenced.

Section 72 (1) of the Domestic Relations Law provides statutory authority for court-ordered grandparents' visitation:

Where either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent or the grandparents of such child may apply to the supreme court by commencing a special proceeding . . . ; and on the return thereof, the court, by order, after due notice to the parent . . . , to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.

"The statute rests on the humanitarian concern that visits with a grandparent are often a precious part of a child's experience and there are benefits which devolve upon the grandchild . . . which he cannot derive from any other relationship" (Matter of E.S. v P.D., 8 NY3d 150, 156 [2007] [internal quotation marks and citations omitted]).

"Section 72 (1) does not create an absolute or automatic right of visitation. When grandparents seek visitation under section 72 (1), the court must undertake a two-part inquiry. First, the court must find standing based on death or equitable circumstances," and if "the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild" (id. at 157 [internal quotation marks and citations omitted]). As a matter of constitutional law, however, the courts may "not lightly intrude on the family relationship against a fit parent's wishes" because there is a "presumption that a fit parent's decisions are in the child's best interests" (id. at 157, 159—161, discussing Troxel v Granville, 530 US 57 [2000]). Finally, "an acrimonious relationship" between the parent and grandparents "is generally not sufficient cause to deny visitation," because "where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists" (id. at 157 [internal quotation marks and citations omitted]; see Matter of Vandenburg v Vandenburg, 137 AD3d 1498, 1500 [3d Dept 2016]).

Here there is no question that the Ds have established standing, given the death of their son Ron Jr. Thus the question is whether, giving due weight to the views of the mother of M.Q., grandparent visitation and a continued relationship with her paternal grandparents is in M.Q.'s best interest. The determination whether visitation is in the child's best interest requires evaluation of a variety of factors, including the basis and reasonableness of the parent's objections, nature and extent of the existing relationship between the grandparents and child, and the grandparents' nurturing skills and attitude toward the parent (Matter of Vandenburg v Vandenburg, 137 AD3d at 1499).^[FN1]

Ms. V. proffers two reasons for opposing the Ds' visitation with M.Q. First, she believes that visitation is not in M.Q.'s best interest because the Ds did not care enough about her to make a decision to give the life insurance policy proceeds to her and M.Q. Second, she believes that [*6]her anger and animosity toward the Ds, and the anxiety she faces when she has to deal with them, seriously affects her health and that unhealthy anxiety will be transferred to M.Q. Ms. V. testified that before each visit she relies on medication to help her deal with the stress and anxiety of the visits, affecting her ability to parent her child. And, she contends, M.Q. has a loving relationship with her maternal grandparents. Ms. V. also does not believe the Ds have developed a meaningful relationship with M.Q., and described a temper tantrum that M.Q. once had when she wanted to attend a friend's birthday party instead of participating in a scheduled visit with her grandparents. Ms. V. does not trust the Ds to be alone with the child because she fears they will interfere with her own relationship with M.Q.

The Court does not find the basis for Ms. V.'s objections to be reasonable. It does not discount Ms. V.'s concerns about the stress and anxiety she feels over the Ds' visits with M.Q., but concludes that given all the evidence, her view that M.Q's best interest will be best served by foreclosing a continuing relationship with her paternal grandparents is unfounded. The Ds have demonstrated that they are responsible individuals and nurturing grandparents. Since M.Q.'s birth, they have made sustained attempts to have a grand-parental relationship with her, including bringing this action. From the Ds' testimony and demeanor on the stand, the Court credits their sincere desire to have the same kind of loving and supportive relationship with M.Q. that they have with their other grandchildren. The Court also credits Ms. D's testimony that she admires and feels affection for Ms. V. and enjoys being with her; the Court discerned no negative attitude toward Ms. V. despite their adversarial relationship in this proceeding.

Moreover, the Court disagrees with respondent's position that the Ds' failure to give some or all of the proceeds of the life insurance policy to them proves that they do not have her daughter's best interest at heart. Their remaining son was the designated beneficiary on the life insurance policy; they were not. They could not control their son's decision regarding the disposition of those proceeds. The Court credits the Ds' testimony that they made many efforts to convince their son to share the proceeds with Ms. V. and M.Q. or place them in a trust for M.Q., and that those efforts were unsuccessful. The Court notes that the entire family—Ms. V., the D, and their other children—were grieving in the months following Ron Jr.'s death. It is understandable that the Ds did not want to press the issue of insurance proceeds to the point of alienating their remaining son. And although it would not have precluded the Ds from offering other financial help, a reading of the email communications in the record supports the Ds' view that Ms. V. disclosed her financial circumstances to support her request for the life insurance proceeds and was not making a broader request for financial help.

Consequently, that their son did not share the insurance proceeds does not demonstrate that the Ds did not have M.Q.'s best interest at heart. The Court concludes that while Ms. V. may suffer stress and anxiety when she prepares for the Ds' visits with M.Q., her principal basis for justifying those feelings—the refusal to turn over the insurance proceeds—is not a reasonable one.

And while it is also understandable that each visit brings to the fore thoughts and feelings about her troubled life with her deceased husband, the history of the visits that Ms. V. agreed upon set forth in the February 15, 2015 temporary order demonstrates that she has been able effectively to cope with those feelings. All parties described the five visits between the Ds and Ms. V. and M.Q. as at least courteous and polite, if not enjoyable. There were no reports whatsoever of unexpected or untoward incidents. And there is nothing in the testimony or exhibits that would suggest that the Ds' continued visitation with M.Q., with or without Ms. V.'s [*7]participation, would pose a threat to M.Q.'s physical or emotional well-being. Indeed the Ds' testimony regarding these visits suggests a certain gentleness in their relationship with M.Q.

Finally, it is unreasonable for Ms. V. to expect that M.Q. would forever be shielded from knowledge about her father and his family. Indeed, a continuing relationship between M.Q. and her grandparents from an early age may well provide a more rounded view of her father's life. The Court acknowledges that it may pose some difficulties for Ms. V. to accommodate and nurture their relationship, given the strength of her feelings and her desire to move forward with her life. But the Court concludes that it is in M.Q.'s best interest to have a continuing and meaningful relationship with the Ds. While M.Q. appears to have a continuing relationship with her maternal grandparents, a meaningful relationship with her paternal grandparents may provide benefits to M. Q. that she cannot derive from any other relationship (see E.S. v P.D., 8 NY3d at 156). Under the facts of this case, the presumption that Ms. V.'s contrary view is in her daughter's best interest has been overcome (see id. at 159-161).

In fashioning the order of visitation, the Court has carefully considered the success of the visits under the temporary visitation order, the fact that M.Q. is approaching four years of age, and the two-hour drive between the residences of her mother and grandparents. Because it would be unworkable to schedule visits, considering the travel time, at the Ds' home in Yorktown within the span of four to eight hours as set forth in the temporary order, this order provides initially for two overnight visits each year. When M.Q. reaches six years of age, the order provides that the two overnight visits become weekend visits.

The Court declines at this time to grant petitioners' request for a one week of vacation visitation with M.Q. each summer. The Court anticipates that as M.Q. becomes elementary-school-aged and spends more time with the Ds as required by this order, it may well be appropriate and desirable for M.Q. to spend a week of summer vacation with the Ds and their family. The Court encourages the parties to cooperate in scheduling a week of vacation time with the Ds when that time comes, but if the parties cannot agree, petitioners may seek an amendment of this order.

Accordingly, it is hereby

ORDERED that petitioners shall continue to have the opportunity to visit with the child every other month. In the months of February, April, June, August, and October of 2016, the visits shall be on a Sunday for a period of four to eight hours. During the Sunday visits, petitioners may take M.Q. to locations in the Albany area other than respondent's home for at least four of those hours, so long as they are not more than one hour driving time from respondent's home.

ORDERED that, beginning in December 2016, and during each August and December thereafter, the visits shall be overnight visits, beginning at 2:00 p.m. on Saturday and returning home by 6:00 p.m. on Sunday. During the overnight visits, petitioners may take M.Q. to their home in Yorktown and other locations within one hour of their home. In the months of February, April, June and October, the bi-monthly visits shall continue as set forth in the first decretal paragraph.

ORDERED that, beginning in December 2018, and during each August and December thereafter, the visits shall be weekend visits, beginning at 6:00 p.m. on Friday and returning home by 6:00 p.m. on Sunday. During the weekend visits, petitioners may again take M.Q. to their home in Yorktown and other locations within a reasonable driving distance of their home. In the months of February, April, June and October the bi-monthly visits shall continue as set [*8]forth in the first decretal paragraph.

ORDERED that the Sunday, overnight, weekend visits need not be supervised by respondent. Respondent may accompany M.Q. for part of these visits, but the petitioners shall have at least four hours of unsupervised visitation each time, unless the parties otherwise agree. For each visit, petitioners are required to pick up and return M.Q. to respondent's residence, unless the parties agree otherwise.

ORDERED that, at least twice during each month when no visits are scheduled, respondent shall cooperate in allowing M.Q. to have a conversation with petitioners by Skype, Face Time, or other electronic means for at least ten minutes in duration. Petitioners shall pay for and provide all necessary computer equipment and internet access to accomplish these electronic visits.

ORDERED that, petitioners' request for an order allowing them to have M.Q. join them for a week-long vacation each summer is denied at this time, without prejudice to petitioners seeking an amendment to this order once M.Q. becomes elementary-school-aged.

ORDERED that the parties shall be flexible, within reason, regarding the scheduling and rescheduling of all visits and communications by electronic means.

ORDERED that the parties shall not speak to M.Q. or in her presence in a manner intended to alienate the affections of any of the parties.

This constitutes the Decision and Order of the Court. The original Decision and Order is being transmitted to petitioners' counsel. All other papers are being transmitted to the County Clerk for filing. The signing of this Decision and Order does not constitute entry or filing under CPLR 2220 and counsel is not relieved from the applicable provisions of that rule respecting filing and service.