SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1135 

CAF 11-02483 

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ. 

 

 

IN THE MATTER OF WILLIAM M. HILGENBERG, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

CHRISTOPHER A. HERTEL, RESPONDENT, 

AND HEIDI D. HILGENBERG, RESPONDENT-APPELLANT.

 

KELLY M. CORBETT, FAYETTEVILLE, FOR RESPONDENT-APPELLANT. 

KARIN H. MARRIS, ATTORNEY FOR THE CHILD, SYRACUSE, FOR KAMERI M.H. 

 

Appeal from an order of the Family Court, Onondaga County

(Salvatore Pavone, R.), entered October 25, 2011. The order, among

other things, awarded petitioner visitation with the subject child. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by vacating the first and second

ordering paragraphs and as modified the order is affirmed without

costs, and the matter is remitted to Family Court, Onondaga County,

for further proceedings in accordance with the following Memorandum: 

Petitioner grandfather, the father of respondent mother, commenced

this proceeding seeking visitation with his granddaughter (hereafter,

grandchild). The mother appeals from an order that, inter alia,

granted the petition and awarded the grandfather one weekend per month

of overnight visitation with the grandchild. Initially, we reject the

mother’s contention that the grandchild was deprived of effective

assistance of counsel in Family Court (see generally Matter of

Ferguson v Skelly, 80 AD3d 903, 906, lv denied 16 NY3d 710; Matter of

Sarah A., 60 AD3d 1293, 1294-1295; Matter of West v Turner, 38 AD3d

673, 674). The record does not support the mother’s allegation that

the Attorney for the Child failed to make a recommendation in

accordance with the grandchild’s wishes, or the mother’s implicit

contention that the Attorney for the Child was biased against her (see

generally Matter of Nicole VV., 296 AD2d 608, 614, lv denied 98 NY2d

616).

We reject the mother’s conclusory assertion that Family Court

erred in concluding that the grandfather had standing to seek

visitation. A grandparent has standing to seek visitation with his or

her grandchildren pursuant to Domestic Relations Law § 72 (1) where,

inter alia, “circumstances show that conditions exist [in] which

equity would see fit to intervene.” The factors that a court must

consider in determining whether the grandparent made such a showing
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CAF 11-02483 

include the “nature and basis of the parents’ objection to visitation

. . . [and] the nature and extent of the grandparent-grandchild

relationship” (Matter of Emanuel S. v Joseph E., 78 NY2d 178, 182; see

Matter of Morgan v Grzesik, 287 AD2d 150, 154). Here, the court

properly concluded that the grandfather had demonstrated a longstanding and loving relationship with the grandchild sufficient to

seek visitation with her.

Upon demonstrating standing to seek visitation, however, a

grandparent must then establish that visitation is in the best

interests of the grandchild (see Emanuel S., 78 NY2d at 181). Among

the factors to be considered are whether the grandparent and

grandchild have a preexisting relationship, whether the grandparent

supports or undermines the grandchild’s relationship with his or her

parents, and whether there is any animosity between the parents and

the grandparent (see Matter of E.S. v P.D., 8 NY3d 150, 157-158). 

Animosity alone is insufficient to deny visitation. “ ‘It is almost

too obvious to state that, in cases where grandparents must use legal

procedures to obtain visitation rights, some degree of animosity

exists between them and the party having custody of the

[grandchildren]. Were it otherwise, visitation could be achieved by

agreement’ ” (id. at 157, quoting Lo Presti v Lo Presti, 40 NY2d 522,

526). Furthermore, “the decision whether . . . an intergenerational

relationship would be beneficial in any specific case is for the

parent to make in the first instance. And, if a fit parent’s decision

. . . becomes subject to judicial review, the court must accord at

least some special weight to the parent’s own determination” (Troxel v

Granville, 530 US 57, 70; see Morgan, 287 AD2d at 151). Thus, “the

courts should not lightly intrude on the family relationship against a

fit parent’s wishes. The presumption that a fit parent’s decisions

are in the [grand]child’s best interests is a strong one” (E.S., 8

NY3d at 157). 

Inasmuch as the court made no finding that the mother was not

fit, and the grandfather did not take a cross appeal from the order,

we must therefore begin by according “some special weight” to the

mother’s decision that the grandchild’s best interests are not served

by visitation with the grandfather (Troxel, 530 US at 70). 

Furthermore, the court’s determination concerning whether to award

visitation “ ‘depends to a great extent upon its assessment of the

credibility of the witnesses and upon the assessments of the

character, temperament, and sincerity of the parents’ ” and

grandparents (Matter of Thomas v Thomas, 35 AD3d 868, 869; see Matter

of Steinhauser v Haas, 40 AD3d 863, 864). The court’s determination

concerning visitation will not be disturbed unless it lacks a sound

and substantial basis in the record (see Thomas, 35 AD3d at 869;

Matter of Keylikhes v Kiejliches, 25 AD3d 801, 801, lv denied 7 NY3d

710). 

Here, we conclude that the court’s determination lacks a sound

and substantial basis in the record insofar as it grants visitation to

the grandfather. The mother and the grandmother testified to serious

wrongdoing by the grandfather, including, inter alia, illegal drug use

and sales, and vehicular assault upon the mother’s boyfriend. The
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CAF 11-02483 

court failed to make any finding regarding the credibility of those

allegations, and thus we have no basis upon which to determine how

those allegations, which include serious misconduct, would impact the

determination whether visitation with the grandfather is in the

grandchild’s best interests. Furthermore, there is no evidence in the

record establishing that the grandfather previously has cared for the

grandchild overnight, or for as extensive a time as the full weekend

of visitation awarded by the court. “Given the . . . deficiencies in

the record . . . , this Court can neither conclude that a sound and

substantial basis exists for Family Court’s award of [visitation] to

the [grand]father . . . , nor can we accord appropriate weight to the

[court’s credibility determinations] in conducting our own independent

review” (Matter of Rivera v LaSalle, 84 AD3d 1436, 1440). We

therefore modify the order by vacating the first two ordering

paragraphs, and we remit the matter to Family Court for further

proceedings on the petition. 

Entered: November 9, 2012 Frances E. Cafarell

Clerk of the Court