Lo Presti v. Lo Presti

• Decision Date: 13 July 1976
• Parties: , 355 N.E.2d 372, 90 A.L.R.3d 217 Emil LO PRESTI et al., Respondents, v. Margaret LO PRESTI, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 412

387 N.Y.S.2d 412

40 N.Y.2d 522, 355 N.E.2d 372, 90

A.L.R.3d 217

Emil LO PRESTI et al., Respondents, v. Margaret LO PRESTI, Appellant.

Court of Appeals of New York.

July 13, 1976.

John J. Hayden, Goshen, for appellant.

Daniel J. Bloom, New York City, and Peter E. Bloom, for respondents.

COOKE, Judge.

In this habeas corpus proceeding instituted pursuant to section 72 of the Domestic Relations Law, the paternal grandparents seek to obtain visitation rights in respect to the two children of their deceased son. The natural mother, Margaret McLaughlin (formerly Lo Presti), opposes the application on the ground that it is not in the best interest of the children.

At the conclusion of a hearing, the Family Court in its findings noted certain pertinent circumstances. Vincent Lo Presti, the father of the children and the victim of a terminal illness, required extended periods of hospitalization and treatment. At a point between April and June, 1974 friction developed between Lo Presti's parents and his wife concerning his care. On June 1, 1974, after being discharged from a hospital, Vincent Lo Presti was returned to his home at Cornwall, New York. His wife decided, after consulting with a psychologist and a physician and with the consent of her husband and his parents, that it would be better for the children not to see their father in his then existing condition. She removed herself and the children to her own parents' house at Walden, New York. Thereafter, the wife attended to her husband during the day, returning to Walden in the evening to care for the children. Petitioners would assist their son after his wife's departure and until she arrived the next morning. The children visited their father once during this period, but one of them, 'Jimmy', became very upset on that occasion. Petitioners grew increasingly embittered about the living arrangements and demanded that their daughter-in-law resume residence with her husband, but she did not comply. On July 4, 1974, Vincent Lo Presti passed away. After his death, respondent and the children moved back to the Cornwall home for one month, then returned to Walden for a short time and finally, in January of 1975, moved to Cornwall permanently.

Medical testimony, found credible by the Family Court, indicated that Dr. Baker, a clinical psychologist, had been treating 'Jimmy' for a nervous condition from June, 1974 until May, 1975. The cause of the difficulty stemmed, in part, from the child's concern for his father, mother and sister but, according to the doctor, the condition showed signs of improvement in early 1975. Premised upon further testimony of the doctor, the court made specific findings that:

'14. During the time of the marriage and before the father died, the petitioners saw the children approximately every two weeks, following which visits the child Jimmy was 'keyed up' and hyperactive.

'15. At the present time the children and especially Jimmy are adjusting well.

'16. At the present time there is no way of knowing what possible effects visitation by the children with their grandparents will have.'

In concluding that the best interest of the children precluded visitation by the grandparents, the court, in viewing Dr. Baker's testimony commented: 'His opinion, that he does not know what effect visitation would have, results in a possible gamble with the welfare of the children if visitation should be granted. It is inconceivable that the courts, pursuant to section 72 of the Domestic Relations Law, are to take such risks'. The court later added: 'It is unfortunate that the petitioners and the respondent cannot get along amicably. There is certainly no court in existence which can change this. This being so, it could not possibly be in the best interests of the children to compel their mother to observe visitation rights by the grandparents whom she at this point, so strongly resents.'

On appeal, the Appellate Division reversed, on the law, and granted visitation privileges to the grandparents on the ground that: 'Animosity between the mother of the...