Daghir v. Daghir

Decision Date17 June 1982
Citation453 N.Y.S.2d 609,56 N.Y.2d 938
Parties, 439 N.E.2d 324 Frances S. DAGHIR, Appellant, v. Khalil S. DAGHIR, Respondent.
CourtNew York Court of Appeals Court of Appeals

The order of the Appellate Division, 82 A.D.2d 191, 441 N.Y.S.2d 492, should be affirmed, with costs.

The Appellate Division properly reversed the order of Family Court for error of law. The Family Court had based its decision only on a balancing of the interests of the husband and the wife without making any determination as to the best interests of the children--the legally dispositive issue. Because the Family Court did not consider this issue it can be said, as did the Appellate Division, that the Family Court erred as a matter of law. The appellate court then proceeded to exercise its fact-finding authority and responsibility and determined that the best interests of the children would be served by prohibiting their removal from New York State and awarding temporary custody to the father during the mother's absence from the State for the purpose of giving effect to the father's right of visitation. This is not, therefore, a classic custody case in which we are often called on to choose between differing factual assessments as to the best interests of the children (cf. Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260). In this instance we would disturb the disposition at the Appellate Division only if we were to conclude that it was erroneous as a matter of law. No such conclusion can be drawn on the record before us (cf. Priebe v. Priebe, 55 N.Y.2d 997, 449 N.Y.S.2d 472, 434 N.E.2d 708; Weiss v. Weiss, 52 N.Y.2d 170, 436 N.Y.S.2d 862, 418 N.E.2d 377).

MEYER, Judge (dissenting).

The majority's conclusion that the Appellate Division did not err as a matter of law and that the Family Court Judge did is not sustainable on the record. Indeed, exactly the opposite is true. Moreover, its conception that the custody of a child can be changed "for the purpose of giving effect to the father's right of visitation"001cents= without consideration of any of the many other factors involved in the determination of the child's best interest is so inconsistent with precedent that I cannot join in it. Respectfully, therefore, I dissent.

The majority memorandum makes no reference to the proceeding underlying the Appellate Division order. It was an application by defendant father, made to the Supreme Court which had granted plaintiff wife a divorce by reason of the cruel and inhuman treatment of her by defendant. The relief which it sought was that plaintiff, as custodial parent, be prohibited from removing the three children of the marriage, ages 15, 13 and 9, from the State without defendant's written consent, the enlargement of defendant's visitation privileges, and "in the alternative" that if plaintiff wished to reside in France the children shall remain in New York with defendant as custodial parent until plaintiff returns. The affidavit on the basis of which the order to show cause initiating the proceeding was obtained recited the divorce, plaintiff's remarriage to Joseph Coughlin, the fact that the divorce judgment, a copy of which was annexed, provided that the children were not to be removed from the State without plaintiff's consent, that defendant had learned that plaintiff's new husband had "applied for transfer, or has been assigned, as the case may be, to France," that defendant would be irreparably damaged if the children were removed to France, that the reason for the move by plaintiff and her husband to France should be examined as to its necessity and where the best interests of the children weighed in the decision, that if plaintiff and her husband desired to go to France defendant should become the custodial parent until their return and that lesser solutions "are empty." The affidavit said nothing about defendant's ability to provide a home and proper supervision for the children if custody was awarded to him.

The judgment of divorce had given custody of the children to plaintiff. Included in the findings on which it was based were that on June 1, 1974, defendant left the marital home without informing his wife or making provision for the support of plaintiff and the three children and remained away in Lebanon for some 18 days, that there had been much argument over the religious upbringing of the children, that defendant had threatened to move back to Lebanon and take the children with him notwithstanding plaintiff's objections and that "plaintiff has provided a good home for the children during the period the parties have lived apart; and, further, the defendant is unable to adequately care for the children while working full time and that there is some basis that the granting of custody to the defendant would result in their being removed to Lebanon on a permanent basis."

The record contains no answering papers from plaintiff. It shows that on the return day of the order to show cause, the application was transferred from Supreme Court to Family Court, and that when a hearing was held in Family Court one week later defendant's only witness was James Heenan of IBM, Joseph Coughlin's employer, who testified concerning the circumstances under which Coughlin was being transferred to France. Defendant was not called as a witness nor did his attorney offer any additional witnesses or evidence other than to suggest that the Judge might want to examine the children, an offer which the Judge declined.

There followed oral arguments by the two attorneys, after which the Judge dictated his decision into the record and directed that the minutes as transcribed be deemed the order. He found that the move to France was only temporary and that it had not been initiated or precipitated by plaintiff and Mr. Coughlin, that there was neither bad faith nor malice on plaintiff's part, that the defendant's visitation would be somewhat reduced but that that would be accommodated by providing additional and alternative visitation and reducing support. He, therefore, denied the request to restrain plaintiff from taking the children to France, but reduced defendant's support payments so as to save him $4,000 per year, increased his summer visitation from two weeks to 30 days, required plaintiff to pay the cost of transporting the children back and forth for that visitation, and gave defendant such additional visitation in France as the parties could agree upon, but not less than one week, to coincide with the Christmas, Easter or spring vacation of the children. The effect, the Judge noted, if defendant took the total time available would be that he would spend more time per year with them than provided for by the divorce decree.

Thus, although the decision made no specific reference to defendant's alternative request for transfer of custody to defendant, the Family Court Judge denied both branches of defendant's application. By clear implication, though not in so many words, he found that it was in the best interests of the children that they remain in plaintiff's custody and that their loss of visitation with defendant during the two-year period the Coughlins were expected to be abroad would be sufficiently compensated by the revised visitation ordered so as not to affect their interest detrimentally. Because the children had been in plaintiff's custody for some five years after the divorce court found it in their best interest that she have custody, there was no need for evidence or additional findings concerning plaintiff's ability to care for them properly.

The same cannot be said, however, with respect to defendant, as to whom the divorce court had made an explicit finding that he could not adequately care for the children while he worked full time. Nevertheless, defendant, who as applicant for a change of custody had the burden of negating the prior finding and proving just how the children would be cared for in his custody, did not even take the stand. Yet despite the absence of any such indication, either in evidentiary or affidavit form, the Appellate Division majority, reversing, "granted temporary custody of the children to the defendant for so long as the plaintiff shall reside outside of New York State." It did so on the basis of the rule declared by it in Strahl v. Strahl, 66 A.D.2d 571, 574, 414 N.Y.S.2d 184, affd. 49 N.Y.2d 1036, 429 N.Y.S.2d 635, 407 N.E.2d 479, that visitation between a noncustodial parent and his or her children is so important that the parent may not be deprived of reasonable and meaningful access to the children unless visitation "is inimical to the welfare of the children or the parent has in some manner forfeited his or her right to such access." It recognized that a custodial parent has a right to remarry, which may require a change of locale, but noted that there is an obligation to protect the relationship of the children with the noncustodial parent which may require sacrifices by the custodial parent. The rule governing such cases was, therefore, the "reasonable accommodations of the rights and needs of all concerned, with appropriate consideration given to the good faith of the parties in respecting each other's parental rights." (82 A.D.2d, at p. 195, 441 N.Y.S.2d 494.)

Against that rule, the majority at the Appellate Division analyzed the facts and concluded on balance that the Family Court order unjustifiably and unreasonably interfered with defendant's right to meaningful visitation and was contrary to the children's best interests. The reasons given were that it would separate a loving and devoted father from his children for two consecutive periods of one year each, it being speculative to suggest that defendant would be able to visit the children in France, that although the number of...

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