Ortman v. Ortman

265 A.D.2d 926, 695 N.Y.S.2d 805, 1999 N.Y. App. Div. LEXIS 10064

Opinion

—Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Defendant moved for suspension of his future child support payments on the ground that plaintiff unjustifiably denied him his right to visitation {see generally, Matter of Orange County Dept, of Social Servs. [Tibaldi] v Meehan, 252 AD2d 588, 590; Hiross v Hiross, 224 AD2d 662, 663; Matter of Hecht v Hecht, 222 AD2d 589). In response to the motion, the Law Guardian alleged that there was an issue of fact whether plaintiff deliberately frustrated defendant’s visitation rights, and he requested that Supreme Court conduct a hearing. He asserted that plaintiff cooperated in part with the last attempt at supervised visitation. The court granted the motion without a hearing. In its decision, the court relied on various documents that are not in the record before us. Under the circumstances of this case, we conclude that it was error to grant defendant’s motion without a hearing. The assertions of the Law Guardian raise a triable issue of fact whether plaintiffs conduct rose to the level of deliberate frustration or active interference with defendant’s visitation rights (see, Hiross v Hiross, supra, at 663; Matter ofHecht v Hecht, supra). Consequently, we reverse and remit the matter to Supreme Court for a hearing on the motion.

Because it is the right of every child to be supported by his or her parents (Domestic Relations Law § 240; Family Ct Act § 413), caution should be taken to ensure that the rights of children are not bargained away by the parents (see generally, Matter of Dox v Tynon, 90 NY2d 166). There are remedies other than withholding support that are designed to protect visitation rights. (Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Support.) Present — Pine, J. P., Lawton, Wisner, Hurlbutt and Callahan, JJ.