Monteleone v. Kick

Appellate Division of the Supreme Court of New York

Monteleone v. Kick

142 A.D.2d 964, 530 N.Y.S.2d 387, 1988 N.Y. App. Div. LEXIS 14994

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 7, 1988

StatusPublished

Cited by1 cases

This text of 142 A.D.2d 964 (Monteleone v. Kick) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Monteleone v. Kick, 142 A.D.2d 964, 530 N.Y.S.2d 387, 1988 N.Y. App. Div. LEXIS 14994 (N.Y. Ct. App. 1988).

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Opinion

Order unanimously reversed on the law without costs, in accordance with the following memorandum: Petitioner appeals from an order entered in a [965]*965proceeding to modify his visitation rights with his daughter which "ordered that the Family Court Processing Department is hereby directed not to accept any further petitions as to visitation or custody * * * by this petitioner”. This was improper. Fundamental rights are involved in matters of custody and visitation (see, Stanley v Illinois, 405 US 645). There is no statutory authority for the court to issue an order which denies petitioner access to Family Court. Moreover, once a petition to determine custody or visitation is filed, it must be served upon the respondent (Family Ct Act § 154-a; cf, Family Ct Act §§ 524, 1035 [c]). Thus, Family Court has no discretion whether to serve such a petition once filed and, accordingly, has no power to order the Probation Department not to process further petitions of this petitioner. (Appeal from order of Onondaga County Family Court, Buck, J. — visitation.)

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Order unanimously reversed on the law without costs, in accordance with the following memorandum: Petitioner appeals from an order entered in a [965]*965proceeding to modify his visitation rights with his daughter which "ordered that the Family Court Processing Department is hereby directed not to accept any further petitions as to visitation or custody * * * by this petitioner”. This was improper. Fundamental rights are involved in matters of custody and visitation (see, Stanley v Illinois, 405 US 645). There is no statutory authority for the court to issue an order which denies petitioner access to Family Court. Moreover, once a petition to determine custody or visitation is filed, it must be served upon the respondent (Family Ct Act § 154-a; cf, Family Ct Act §§ 524, 1035 [c]). Thus, Family Court has no discretion whether to serve such a petition once filed and, accordingly, has no power to order the Probation Department not to process further petitions of this petitioner. (Appeal from order of Onondaga County Family Court, Buck, J. — visitation.)

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Bluebook (online)

142 A.D.2d 964, 530 N.Y.S.2d 387, 1988 N.Y. App. Div. LEXIS 14994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monteleone-v-kick-nyappdiv-1988.

Opinion

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