Carter v. Carter

58 A.D.2d 889

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 25, 1977
• Status: Published

Opinion

— Appeal from an order of the Family Court, Rockland County, entered March 19, 1976, which, inter alia, directed the appellant to permit petitioner-respondent to have increased visitation with their child, and directed the parties to attend "visitation counseling or therapy”. Order reversed, on the law, without costs and disbursements, and proceeding remanded to the Family Court for a new hearing in accordance herewith. The parties entered into a separation agreement, incorporated into the judgment of divorce, which provided for specified periods of visitation. The mother, who did not have custody of the child, petitioned the Family Court for modification of the agreement in order to provide increased visitation. That court, without taking any testimony from the petitioner, ordered the appellant father to prove that increased visitation was not in the best interests of the child. He was required to bear the burden of proof on this issue. The Family Court, on the basis of appellant’s testimony, and without hearing any testimony from the petitioner, then ordered increased visitation as well as "visitation counseling”. Absent a showing by the petitioner that it is in the best interests of the child to have increased visitation, or any proof warranting "visitation counseling”, the Family Court was not warranted in

disturbing the existing visitation provisions. Latham, J. P., Shapiro, Hawkins and Suozzi, JJ., concur.