In the Matter of Denise D., Appellant, v. Alissa E., Respondent, et al.
Attorneys and Parties
Brief Summary
Family law — whether, in a proceeding under Family Ct Act article 6 [governs custody and visitation proceedings in Family Court], Family Court could sua sponte modify joint legal custody in the context of a grandparent-visitation modification, and whether the visitation schedule served the child's best interests.
Family Court terminated the grandmother's joint legal custody, awarded joint legal custody to the mother and father, and imposed a structured grandparent-visitation schedule.
The portion of the order modifying legal custody by removing the grandmother from joint legal custody and awarding joint legal custody to the parents.
No petition or notice sought modification of legal custody; the court raised the issue on its own after opening statements, depriving the nonparent grandmother of due process and her opportunity to meet the required showing of extraordinary circumstances. The record lacked testimony and a best-interests determination on legal custody (see Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Ferguson v Skelly, 80 AD3d 903). The grandparent-visitation schedule had a sound and substantial basis and was affirmed.
Background
The child (born 2013) is the daughter of respondents (mother Alissa E. and father Garrie F.) and the granddaughter of petitioner Denise D. A June 2022 consent order granted the mother and grandmother joint legal custody, provided that physical custody would move from the grandmother to the mother on July 1, 2022, and set specific visitation for the grandmother. The order allowed the grandmother to petition for further grandparent visitation after July 1, 2023, if the parties could not agree. In April 2023, the grandmother filed an amended petition for additional visitation, citing the parties' inability to agree and the child's wishes. The order did not address any termination of joint legal custody.
Lower Court Decision
After a fact-finding hearing on the grandmother's visitation petition, Family Court denied dismissal, terminated the grandmother's joint legal custody, awarded joint legal custody to the mother and father (the father had only limited 'incidents' of legal custody under the prior order), and set a schedule granting the grandmother one dinner visit weekly, one weekend monthly, a week in July, and phone/video contact as permitted by the parents.
Appellate Division Reversal
The Appellate Division held that the visitation schedule had a sound and substantial basis and was consistent with the child's best interests, so it was affirmed. However, the court reversed and struck the portion of the order modifying legal custody because no petition or notice sought that relief, the issue was raised sua sponte after openings, and there was neither testimony nor a best-interests determination regarding legal custody. The order was modified, on the law, without costs, by reversing so much as awarded joint legal custody of the child to the respondents; as so modified, it was affirmed.
Legal Significance
Reaffirms that in grandparent-visitation proceedings under Family Ct Act article 6, Family Court cannot convert the matter into a legal-custody modification without proper pleadings, notice, and a best-interests analysis—particularly where a nonparent must show extraordinary circumstances. Also confirms the broad discretion to set grandparent-visitation schedules when supported by a sound and substantial record.
Family Court may not sua sponte alter legal custody in a grandparent-visitation case without notice and best-interests findings; a measured, record-supported grandparent-visitation schedule will be upheld.