Fischbein v. Fischbein

55 A.D.2d 885, 391 N.Y.S.2d 6, 1977 N.Y. App. Div. LEXIS 10100

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

Opinion

Order, Supreme Court, New York County, entered November 24, 1976, denying petitioner’s application for an order requiring respondent to comply with the visitation provisions in their separation agreement, unanimously reversed, on the law, without costs and without disbursements, and the matter remanded for an evidentiary hearing. Generally, visitation rights set forth in a separation agreement should only be altered after a full evidentiary hearing. (Feuer v Feuer, 46 AD2d 610; Treff v Treff, 7 AD2d 842.) The lower court denied the petitioner’s present application to enforce his visitation rights under the parties’ separation agreement because he failed to submit a medical affidavit advising that his daughter should be permitted to see him. At the outset, it should be emphasized that the petitioner could not submit such an affidavit since he did not have access to examine his daughter. In any event, the lower court should not have accepted the unilateral recommendation of the psychiatrist, hired by the respondent, that it was inadvisable for the child to see her father for a period of four months. The petitioner should have been afforded an evidentiary hearing to present his own medical proof. Concur — Murphy, J. P., Lupiano, Silverman and Lane, JJ.