Daghir v. Daghir

• Decision Date: 27 July 1981
• Citation: 441 N.Y.S.2d 494,82 A.D.2d 191
• Parties: Frances S. DAGHIR, Respondent, v. Khalil Shakir DAGHIR, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 494

441 N.Y.S.2d 494

82 A.D.2d 191

Frances S. DAGHIR, Respondent, v. Khalil Shakir DAGHIR, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 27, 1981.

Jeffrey C. Richards, Poughkeepsie (James E. Coombs, Poughkeepsie, of counsel), for appellant.

Charlotte M. Frank, Poughkeepsie (Laura Zeisel and Kathryn S. Lazar, Poughkeepsie, of counsel), for respondent.

Before MOLLEN, P. J., and DAMIANI, MANGANO, RABIN and WEINSTEIN, JJ.

MOLLEN, Presiding Justice.

On this appeal, a noncustodial parent strenuously argues that his right to meaningful visitation with his children will be destroyed by his former wife's efforts to accommodate an entirely unnecessary career choice by her new husband. The wife contends that her actions were a natural and proper concomitant of her remarriage and that her former husband's visitation rights will be preserved in its essential respects. As with all cases involving visitation, we must resolve the dispute, not solely out of consideration of the desires and convenience of the parents, but out of concern for the best interests of the children. We turn first to a brief review of the facts, which are not in dispute.

The parties were married in 1965 and produced three children, now 15, 13 and 9 years of age. In 1976 Frances Daghir, the wife, obtained a judgment of divorce. The judgment, inter alia, awarded her custody of the children, with visitation to the husband, Khalil Daghir, every Sunday from noon to 7:00 P.M. and two weeks in the summer. Additionally, Khalil was ordered to pay alimony and child support.

There is no dispute over the fact that Khalil fulfilled his support obligations and took full advantage of the visitation rights granted to him. There is also no question that he was and remains a loving and devoted father whose visits were warmly welcomed by his children.

Sometime after the divorce, Frances established a relationship with one Joseph Coughlin, a component engineer who had been employed by IBM in that capacity for some 27 years. He worked at the same Mid-Hudson Valley facility where Khalil was employed as a physicist. In November, 1980 Coughlin was approached by IBM about the possibility of a two-year assignment in France. He flew to France to assess the opportunity and, upon his return on December 4, 1980, he accepted the assignment.

Some three weeks later, on December 27, 1980, Frances and Coughlin were married and prepared to move to France with the Daghir children. For reasons of her own, however, Frances never saw fit to inform Khalil of the impending move. Instead, he learned about it through the IBM "grapevine" and immediately brought an order to show cause enjoining the move and seeking, inter alia, to modify the judgment of divorce to prohibit Frances from removing the children from the country without his written consent. In the alternative, he asked that, if Frances insisted on moving to France, custody be transferred to him for the period of her absence.

A hearing was held on the application. The sole witness to appear was James J. Heenan, Coughlin's immediate superior and career manager at IBM. Heenan, testified that Coughlin's acceptance of the assignment would have no bearing on his career advancement at IBM. It involved no financial benefit to him, and, had he rejected it, as IBM employees sometimes do, he would have suffered no financial penalty or impediment to his career. The fact that the assignment required him to deal with people in a foreign country, however, would enrich his portfolio.

According to Heenan, the assignment was scheduled to terminate after two years, but Coughlin could ask for an extension. Moreover, there was no guarantee that, upon completion of the assignment, Coughlin would be re-assigned to the Mid-Hudson Valley facility. That, according to Heenan, would depend upon business conditions at the time.

At the conclusion of the hearing, the court denied Khalil's motion and permitted Frances to take the children to France. The court attempted to alleviate the consequent interruption of contact between Khalil and his children by providing for additional visitation and a reduction in support payments. Summer visitation was enlarged to a total of 30 days, inclusive of time for travel for which Frances would bear the expense. The reduction in support payments by some $4,000 annually would, in the court's view, permit Khalil to travel to France to see the children, and it was ordered that he have such visitation in France as the parties may agree upon, but in no event less than one week to coincide with the children's school vacations.

Khalil now appeals from this determination. We reverse.

Disputes involving custody and visitation are acknowledged to be among the most difficult the courts are called upon to resolve, for they so deeply affect the lives of children and the parents who love them. (See Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 78-79, 437 N.Y.S.2d 411 Several fundamental principles have emerged to guide the courts in deciding such cases. It is the firmly established policy of this State, for example, that, wherever possible, the best interests of a child lie in his being nurtured and guided by both of his natural parents. (See Weiss v. Weiss, 52 N.Y.2d 170, 436 N.Y.S.2d 862, 418 N.E.2d 377.) Thus, a divorced, noncustodial parent and his children jointly enjoy a natural right of visitation. (See Matter of Denberg v. Denberg, 34 Misc.2d 980, 985-986, 229 N.Y.S.2d 831 To be meaningful, however, visitation must be frequent and regular. Only then may a noncustodial parent provide his child with the guidance and counsel youngsters require in their formative years. Only then may he be an available source of comfort and solace in times of his child's need. Only then may he share in the joy of watching his offspring grow to maturity and adulthood. (See Weiss v. Weiss, supra.) Our court fully recognized the importance of visitation to both parent and child when we held that "a parent may not be deprived of his or her right to reasonable and meaningful access to the children by the marriage unless exceptional circumstances have been presented to the court. The term 'exceptional circumstances' or 'exceptional reasons' is invariably associated with a situation where either the exercise of such right is inimical to the welfare of the children or the parent has in some manner forfeited his or her right to such access." (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; see, also, Matter of Becker v. Becker, 75 A.D.2d 814, 427 N.Y.S.2d 492.) Indeed, so jealously do the courts guard the relationship between a noncustodial parent and his child that any interference with it by the custodial parent has been said to be "an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the is unfit to act as custodial parent." (Entwistle v. Entwistle, 61 A.D.2d 380, 384-385, 402 N.Y.S.2d 213 app. dsmd. 44 N.Y.2d 851.)

That is not to suggest, of course, that a custodial parent must scrupulously avoid all conduct which may in any way affect, no matter how slightly, the other parent's right of visitation. Custodial parents have rights as well. Among them is the right to remarry, and we recognize that the obligations of a new marriage may legitimately, if rarely, require even "a dramatic change of locale." (Weiss v. Weiss, supra, p. 177, 436 N.Y.S.2d 862, 418 N.E.2d 377.) The decision to bear children, however, entails serious obligations and among them is the...