Hess v. Pedersen

211 A.D.2d 1000, 621 N.Y.S.2d 747, 1995 N.Y. App. Div. LEXIS 556

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1995
• Status: Published

Opinion

Cardona, P. J.

Appeal from an order of the Family Court of Saratoga County (James, J.), entered March 29, 1994, which, in a proceeding pursuant to Family Court Act article 6, modified the terms of respondent’s visitation.

Petitioner and respondent are married but have been separated since 1988. They have two children, Jacob (born in 1983) and Matthew (born in 1985). The parties were before Family Court on various petitions relating to visitation and, at that time, petitioner complained about overnight visitation at the residence that respondent shared with his girlfriend. Based upon this statement and the fact that the parties were not divorced, Family Court continued the previous order of visitation with a further provision that there be no unrelated adults in the company of the children during the visitation periods. Respondent appeals.

In custody and visitation disputes, the sexual behavior and living arrangements of a parent are relevant if, and to the extent, it can be shown that such factors may adversely affect the welfare of the children (Linda R. v Richard E., 162 AD2d 48, 52; see also, Matter of Blank v Blank, 124 AD2d 1010; Pawelski v Pawelski, 91 AD2d 1200). Here, the record is devoid of proof of respondent’s relationship with this third party or whether there was ever any inappropriate behavior in the presence of the children. There was no proof of whether the restriction was necessary with regard to the best interests of the children (see, Hummel v Hummel, 191 AD2d 296). While the issue of morality of parents and its effect on children should weigh heavily on Family Court decisions (see, Matter of Gitchell v Gitchell, 165 AD2d 890), here the court’s decision was made without giving respondent an adequate opportunity to be heard. Accordingly, the restriction must be eliminated and the proceeding remitted for a hearing.

Crew III, Casey, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is modified, on the law, without costs, by deleting therefrom the provision providing "that there be no unrelated adult males or females in the company of the children during visitation”; matter remitted to the Family Court of Saratoga County for a hearing on the issue of conditions on visitation; and, as so modified, affirmed.