Mahler v. Mahler

72 A.D.2d 739, 421 N.Y.S.2d 248, 1979 N.Y. App. Div. LEXIS 13955

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 1979
• Status: Published

Opinion

In a proceeding for visitation of minors under article 6 of the Family Court Act, petitioner appeals from an order of the Family Court, Suffolk County, entered December 1, 1978, which, inter alia, stated that, as to visitation with the petitioner, the wishes of the children were to be respected at all times. Order modified, on the law and the facts, by deleting therefrom the phrase "and the wishes of the children are to be respected at all times”. As so modified, order affirmed, without costs or disbursements. Language which represents an effort by the court to strike a balance between competing interests and needs may not be used by one of the parties to defeat the visitation rights granted. In the instant case, the wife has apparently deployed the language of this order, which requires that as to visitation by the petitioner father the wishes of the children be respected at all times, as the means to deprive him of any visitation. Petitioner has seen his children only four times since December, 1977 and not at all in the 10 months since the entry of the order granting him visitation. Visitation with the petitioner should not have been conditioned on the wishes of the children. It tends unnecessarily to defeat the right of visitation (see Eylman v Eylman, 23 AD2d 495). Damiani, J. P., Mangano, Rabin and Gulotta, JJ., concur.