Garber v. Cooper
| Decision Date | 12 December 1972 |
| Citation | 339 N.Y.S.2d 222,40 A.D.2d 1077 |
| Parties | In the Matter of Howard GARBER, Respondent, v. Illene COOPER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lippes, Kaminsky & Silverstein, Victor C. Silverstein, Buffalo, for appellant.
Howard Garber, Herbert M. Siegel, Buffalo, for respondent.
Before GOLDMAN, P.J., and MARSH, WITMER, MOULE and CARDAMONE, JJ.
In affirming the order modifying the order of support herein by enlarging petitioner's visitation rights with his six year old daughter and by directing that the name of the child's step-parent shall not be substituted for her given name, we are not in any sense giving approval to the court's rejection of the materiality and competency of medical testimony in cases involving visitation rights or the custody of children. In response to the respondent-appellant's offer of medical proof as to the child being disturbed by the visitation by the petitioner the court stated in the course of its ruling, 'All of these experts are out, insofar as I am concerned . . . Now, I can send this kid out today and get a letter and whatever that says would be diametrically opposed . . . I will get a doctor on the stand here that will say what your man says and I will get another doctor to say that he is wrong.' The usefulness and propriety of such proof has long been recognized by our courts (Bender v. Bender, 33 A.D.2d 546, 304 N.Y.S.2d 482; Glass v. Glass, 31 A.D.2d 758, 297 N.Y.S.2d 633; People ex rel. Fields v. Kaufmann, 9 A.D.2d 375, 193 N.Y.S.2d 789) and the injudicious and arbitrary treatment of the offer of proof cannot be accepted as a sound basis for the court's ruling. However, in view of the admitted strong animosity existing between the parties and the hostile attitude of the mother toward visitation by the father, it would appear that the child's attitudes and emotional reactions as they might be demonstrated to a physician would be strongly influenced by the attitude of the mother who had her under her charge and control. Under all the circumstances presented, we would consider medical testimony as being of very questionable value and entitled to little weight in resolving the issue presented.
Order unanimously affirmed without costs.
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Proceeding for Support under Article 4 of the Family Court Act, Matter of
...of its parents and its situation . . .' (24 N.Y.2d at pp. 272--273, 299 N.Y.S.2d at 844, 247 N.E.2d at 661); Garber v. Cooper, 40 A.D.2d 1077, 339 N.Y.S.2d 222, 223 (4th Dept.): 'the child's attitudes and emotional reactions (towards the father) as they might be demonstrated to a physician ......
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