Legal News Headlines

 
Copyright 2008 Dolan Media Newswires

 May 6, 2008 Tuesday

SECTION: NEWS

LENGTH: 809 words

BYLINE: Elizabeth Stull

BODY: 

A Monroe County Family Court recently granted a grandmother visitation rights with her grandson, over the objections of both parents.

"He's the love of my life and I cherish every moment with him," an emotional Dorothy Martorana told The Daily Record Monday. "You see life differently through a grandchild's eyes. "

Martorana's relationship with her 8-year-old grandson was cut off when she got into a fight with her daughter during a messy divorce with the child's grandfather.

After Judge Dandrea L. Ruhlmann's decision in Martorana v. Ness and Ness, Martorana will spend every other Friday afternoon with her grandson Jacob.

Attorney Sheldon Boyce represented Martorana pro bono with Volunteer Legal Services. Boyce said the court's decision offers hope for grandparents who have been cut off from a grandchild with whom they have a significant relationship.

"The law in New York has always been a difficult battle" for grandparent visitation, Boyce said. Critics say New York's grandparent visitation law allows the courts to intrude in family matters.

"A grandparent of a child with two living parents has standing to seek visitation only if she can establish circumstances in which equity would see fit to intervene," Judge Ruhlmann wrote.

To determine whether Martorana had standing, Judge Ruhlmann considered the nature and extent of the grandparent-grandchild relationship, and the nature and basis of the parents' objection to visitation.

Boyce presented evidence and several days of witness testimony to establish Martorana's extensive relationship with Jacob. The court noted that his family lived with Martorana for three of his first five years. She helped care for him and his older brother by cooking for them, participating in their bedtime routines and taking them to the doctor or dentist.

When Jacob's family moved out of his grandparents' house, they lived nearby. Martorana continued to babysit for the boys and saw them daily or biweekly until Jacob was almost 7.

The parents objected to her visitation request because they believed she would make derogatory remarks about Jacob's grandfather, whom she was divorcing.

The mother also testified that the grandmother screamed, swore and was occasionally physically violent, but she could only describe two specific incidents: one, where Martorana allegedly grabbed her older grandson's shoulder and another where she grabbed his hood, tearing his sweatshirt.

"Even affording considerable weight to both parents' opinions ... the court nonetheless believes that Grandmother has proven that she has standing to seek such visitation," Judge Ruhlmann wrote.

The inquiry to determine standing is similar to the best interest of the child analysis.

The court cited the 2007 Court of Appeals decision in Matter of E.S. v. P.D., 8 NY3d 150, where the grandmother had lived with the child for almost three years. In that case, the court granted visitation to the deceased mother's mother, over the father's objections.

In addition to finding that Jacob and his grandmother have a substantial relationship, the court considered several other factors: the reasonableness of the parents' objections to grandmother's access to the child; her caregiving/nurturing skills and attitude toward the parents; the Law Guardian's assessment and the child's wishes.

In this case, Jacob expressed fond memories of time spent with his grandmother, and the Law Guardian advocated that visits were in his best interests. Martorana testified about nurturing him on nature trips and doing crafts together. The court cited testimony by several people that Jacob ran to his grandmother with outstretched arms.

The court noted that Jacob has experienced much family turmoil. His parents divorced when he was a toddler and his grandparents divorced more recently, after which his relationship with his grandmother was abruptly ended just before his 11-year-old brother was deemed a juvenile delinquent and placed at Hillside Children's Center. Jacob, 8, now lives with his grandfather.

"[I]f the animosity between Grandmother-Mother and Grandmother-Grandfather respectively results in turmoil for Jacob ... the visits must end," the court wrote, citing case law.

Martorana said she and Jacob celebrated their first free Friday together at Dunkin' Donuts and the Dollar Store, at his request. In the future, she plans trips to the museum, bike rides and picnics.

"Grandchildren are a gift. You see life so differently. You have more patience. You have more time. ... You just cherish every moment with them," Martorana said Monday.

Assistant Public Defender Pamela Bayer represented Jacob's mother. She could not be reached for comment at press time.

According to an AARP Web site, more than 4.5 million children are living in households headed by grandparents, including 297,239 children in New York - 6.3 percent of children in the state.

LOAD-DATE: May 7, 2008