Falkides v. Falkides
| Decision Date | 12 December 1972 |
| Citation | 40 A.D.2d 1074,339 N.Y.S.2d 235 |
| Parties | Shirley A. FALKIDES, Respondent, v. John P. FALKIDES, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Smith & Messing, R. Thomas Burgasser, North Tonawanda, for appellant.
Cohen, Lombardo, Blewett & Hite, Richard N. Blewett, Buffalo, for respondent.
Before GOLDMAN, P.J., and DEL VECCHIO, WITMER and CARDAMONE, JJ.
The Family Court of Erie County had jurisdiction to modify its previous order in this matter (Family Court Act Sec. 652) in the absence of an order of the Supreme Court (Family Court Act Section 447; Matter of Bolatin v. Bolatin, 29 A.D.2d 534, 285 N.Y.S.2d 625, affd. 22 N.Y.2d 794, 292 N.Y.S.2d 897, 239 N.E.2d 641). In reviewing the mother's visitation rights with her nine-year old son it properly found that there had been a change of circumstances since the date of its previous order in December, 1968 (Family Court Act, Sections 461, 467, 652). Nevertheless, we are remitting this matter for a further hearing to afford the parties an opportunity to review the Probation and Family Court Clinic Reports and to cross-examine the Probation Officer, Court Psychiatrist and any others involved in making these reports, and further to afford the parties an opportunity to present testimony in opposition thereto, if they so choose. These reports were furnished to the Trial Court in this case and the record reveals that although the Court reserved the attorneys' right to go through the whole probation investigation, such opportunity was never accorded them. Moreover, the Trial Court stated that it based its custody determination on these reports. The law is well settled that the parties may stipulate to waive an examination of these reports and permit them to be received by the Trial Court (Kesseler v. Kesseler, 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402; Isaacs v. Murcin, 38 A.D.2d 673, 327 N.Y.S.2d 126). However, 'professional reports and independent investigations by the Trial Judge entail too many risks of error to permit their use without the parties' consent' (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273, 299 N.Y.S.2d 842, 844, 247 N.E.2d 659, 661). Without the stipulation of consent the reports may be made but the parties must be given an opportunity to explain or rebut the material contained in them (Matter of Lincoln, supra, p. 273, 299 N.Y.S.2d 842, 844, 247 N.E.2d 659, 661; Gutillo v. Gutillo, 30 A.D.2d 484, 294 N.Y.S.2d 438). Further, at the hearing the appellant-respondent (father) presented two witnesses (Arcudi and Huddleston) respecting specific incidents which occurred in 1970 to support appellant's claim that respondent was emotionally unstable. This evidence was improperly excluded. It would have been competent on the issue of the child's welfare...
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Proceeding for Support under Article 4 of the Family Court Act, Matter of
...the adversary system . . . limited modifications of the . . . adversary system must be made, if necessary.' See Falkides v. Falkides, 40 A.D.2d 1074, 339 N.Y.S.2d 235 (4th Dept.) (hearsay report as to child admissible in custody case); Walch v. Walch, 52 N.Y.S.2d 697, 707 (Sup.Ct., Steuben)......
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Salk v. Salk
...reports as an aid in deciding the issue of custody. See: Isaacs v. Murcin, 38 A.D.2d 673, 327 N.Y.S.2d 126; Falkides v. Falkides, 40 A.D.2d 1074, 339 N.Y.S.2d 235; Kesseler v. Kesseler, 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402, mod., 11 N.Y.2d 716, 225 N.Y.S.2d 966, 181 N.E.2d The cour......
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Bazant v. Bazant
...42 N.Y.2d 810, 399 N.Y.S.2d 1025, 369 N.E.2d 774), and here such an interview would have served no useful purpose (Falkides v. Falkides, 40 A.D.2d 1074, 339 N.Y.S.2d 235). The Trial Court acknowledged Karen's preference and considered it, but correctly refused to allow it to be controlling.......
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Draper v. Draper
...26 Ill.App.2d 226, 167 N.E.2d 826 (1960); State ex rel. Fisher v. Devins, 294 Minn. 496, 200 N.W.2d 28 (1972); Falkides v. Falkides, 40 A.D.2d 1074, 339 N.Y.S.2d 235 (1972), aff'd, 356 N.Y.S.2d 231 (Sup.Ct.1974). See also Mazur v. Lazarus, 196 A.2d 477 In our judgment, a court-appointed inv......
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Witness examination
...was permitted to testify that the individual’s acts were rational but not whether the person was of sound mind. Falkides v. Falkides, 40 A.D.2d 1074, 339 N.Y.S.2d 235 (4th Dept. 1972). Testimony by a lay witness describing another’s acts and stating whether the behavior appeared rational or......
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Witness examination
...was permitted to testify that the individual’s acts were rational but not whether the person was of sound mind. Falkides v. Falkides , 40 A.D.2d 1074, 339 N.Y.S.2d 235 (4th Dept. 1972). Testimony by a lay witness describing another’s acts and stating whether the behavior appeared rational o......
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Witness examination
...was permitted to testify that the individual’s acts were rational but not whether the person was of sound mind. Falkides v. Falkides , 40 A.D.2d 1074, 339 N.Y.S.2d 235 (4th Dept. 1972). Testimony by a lay witness describing another’s acts and stating whether the behavior appeared rational o......
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Witness examination
...was permitted to testify that the individual’s acts were rational but not whether the person was of sound mind. Falkides v. Falkides , 40 A.D.2d 1074, 339 N.Y.S.2d 235 (4th Dept. 1972). Testimony by a lay witness describing another’s acts and stating whether the behavior appeared rational o......