Schoffman v. Schoffman

137 A.D.2d 423, 524 N.Y.S.2d 209, 1988 N.Y. App. Div. LEXIS 1574

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 9, 1988
• Status: Published

Opinion

Order of the Supreme Court, New York County (Ethel B. Danzig, J.), entered September 18, 1987, which granted, inter alia, expanded visitation for the infant child with the paternal grandparents and participation by defendant father in this visitation, is unanimously modified, on the law and facts and in the exercise of discretion, to reverse that portion providing for participation by defendant in visitation with the grandparents, and that portion which provided for weekend visitation with the grandparents, and to remand for a full evidentiary hearing with respect to visitation by the defendant and the paternal grandparents, either in a separate hearing or in the course of the trial of this action, which appears imminent, and otherwise affirmed, without costs or disbursements.

It was improper for the Supreme Court to grant defendant father visitation in conjunction with the paternal grandparents’ visits without any evidentiary hearing or demonstration of a change in circumstance occurring since the prior order which terminated his visitation privileges. Nor should the court have extended the previously agreed-upon grandparents’ visitation to include weekends, without first conducting a hearing to determine whether this would be in the best interests of this three-year-old child (see, Lo Presti v Lo Presti, 40 NY2d 522, 527). Accordingly, we modify to vacate those portions of the order and to direct an evidentiary hearing on these issues. The trial of the actiqn appears imminent, and if so, such hearing may be conducted in the course of the trial. Our modification leaves intact, as a temporary measure, visitation three times a month with the grandparents at which defendant will not be in attendance. Concur—Kupferman, J. P., Ross, Asch, Kassal and Ellerin, JJ.