Sturm v. Lyding

101 A.D.2d 1026, 476 N.Y.S.2d 694, 1984 N.Y. App. Div. LEXIS 18775

Opinion

— Order unanimously reversed, without costs, and matter remitted to Niagara County Family Court for further proceedings, in accordance with the following memorandum: We recognize that as a practical matter further efforts to compel compliance with the order of visitation may prove futile in view of Suzanne’s age and the evident determination of her grandmother to frustrate such efforts. Nevertheless, “[visitation is a joint right of the noncustodial parent and of the child” (Weiss v Weiss, 52 NY2d 170, 175). Petitioner is Suzanne’s sole living natural parent and amicable visitation, if possible, would be in the interests of both. At the very least, petitioner is entitled to know whether the decision not to comply with the court order was made of his daughter’s own free will, and Suzanne is entitled to an opportunity to make her own wishes known to petitioner. Family Court should therefore hold a further hearing or informal conference at which both petitioner and Suzanne are present in the absence of the grandmother at which efforts should be made to work out arrangements for visitation in compliance with the prior order as modified in Sturm v Lyding (96 AD2d 731). (Appeal from order of Niagara County Family Court, Halpin, J. — visitation.) Present — Hancock, Jr., J. P., Doerr, Denman, Green and Moule, JJ.