MILLER, PATRICIA v. MCCOWN-HALL, SHYNEKA ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1365.1
CAF 14-02042
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.
IN THE MATTER OF PATRICIA MILLER,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
SHYNEKA MCCOWN-HALL, RESPONDENT-APPELLANT.
DEBORAH J. SCINTA, ORCHARD PARK, FOR RESPONDENT-APPELLANT.
RONALD M. CINELLI, ATTORNEY FOR THE CHILDREN, BUFFALO.
Appeal from an order of the Family Court, Erie County (Paul
Buchanan, J.H.O.), entered October 30, 2014 in a proceeding pursuant
to Family Court Act article 6. The order granted the petition for
visitation.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating that part of the second
ordering paragraph directing that petitioner have visitation “each and
every Thanksgiving” and inserting in place thereof a direction that
petitioner have visitation “in odd years on Thanksgiving,” vacating
that part of the third ordering paragraph directing that petitioner
have visitation “each and every Christmas Day” and inserting in place
thereof a direction that petitioner have visitation “in even years on
Christmas Day,” inserting an ordering paragraph directing that
petitioner’s weekend visitation shall not apply to any part of the
weekend beginning on December 25, 2015, and modifying the fourth
ordering paragraph by inserting that petitioner shall not have weekend
visitation in the month of July in even years and shall not have
weekend visitation in the month of August in odd years, and as
modified the order is affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act
article 6, respondent mother appeals from an order that granted
petitioner paternal grandmother visitation with the subject children.
As an initial matter, we note that it is undisputed that the paternal
grandmother has standing to seek visitation pursuant to Domestic
Relations Law § 72 (1) because the children’s father is deceased (see
Matter of E.S. v P.D., 8 NY3d 150, 157; see generally Matter of Wilson
v McGlinchey, 2 NY3d 375, 380). We agree with the Attorney for the
Children that Family Court properly determined that visitation with
the paternal grandmother is in the children’s best interests (see
Matter of Varney v McKee, 44 AD3d 1178, 1179). We agree with the
mother, however, that the court abused its discretion in awarding the
-2- 1365.1
CAF 14-02042
paternal grandmother excessive visitation that “deprived the mother of
significant quality time with the children” (Matter of Dubiel v
Schaefer, 108 AD3d 1093, 1095 [internal quotation marks omitted]; see
Cesario v Cesario, 168 AD2d 911, 911). We therefore modify the order
accordingly.
Entered: December 16, 2015 Frances E. Cafarell
Clerk of the Court