Turner v. King

79 A.D.2d 654, 433 N.Y.S.2d 834, 1980 N.Y. App. Div. LEXIS 14021

Opinion

Appeal by the petitioner father, as limited by his brief, from so much of a judgment of the Supreme Court, Queens County, dated July 27, 1979, as ordered that his daughter shall not be forced to visit with him, unless she so elects. Judgment reversed insofar as appealed from, without costs or disbursements, the second and third decretal paragraphs are deleted therefrom, and the matter is remitted to Special Term for a hearing on the issue of visitation by the father, which shall be presided over by another Justice. It was inappropriate for the court to deprive the father of all his visitation rights based solely on a conference with the daughter (cf. Obey v Degling, 37 NY2d 768, 771). Under the circumstances of this case, the parties should have been given the opportunity to present evidence on the issue of visitation in open court (cf. Matter of Lincoln v Lincoln, 24 NY2d 270; Heely v Heely, 69 AD2d 810). We also note that the issue of the mother’s contempt for failure to comply with certain prior judgments is not properly before us (see CPLR 5501, subd [a], par 1). Mangano, J. P., Gulotta, Cohalan and Weinstein, JJ., concur.