Weiss v. Weiss

• Decision Date: 24 February 1981
• Citation: 436 N.Y.S.2d 862,418 N.E.2d 377,52 N.Y.2d 170
• Parties: , 418 N.E.2d 377 Rosalyn WEISS, Appellant, v. George D. WEISS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 862

436 N.Y.S.2d 862

52 N.Y.2d 170, 418 N.E.2d 377

Rosalyn WEISS, Appellant, v. George D. WEISS, Respondent.

Court of Appeals of New York.

Feb. 24, 1981.

Irwin K. Fingerit, New York City, for appellant

Aaron Weitz, New York City, for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

In this matrimonial action, divorced parents, each devoted to the welfare of their now 11-year-old son, are enmeshed in a dispute over the desire of the mother, custodian of the child, to take the boy with her to Las Vegas, Nevada, where she intends to set up residence as part of a plan to make "a new life" for herself.

Judicial intervention was precipitated when the father, perceiving that the practical effect of such action would be to undermine his visitation rights, sought to enjoin his former wife from removing the child from this State. After a testimonial hearing, Supreme Court, Westchester County, denied the father's application. The Appellate Division, 428 N.Y.S.2d 506, reversing, granted the injunctive relief he sought. The mother now appeals.

Entered in 1975, when the child was six, the judgment of divorce, which did not suggest that either party was an unfit parent, provided for the incorporation, but not the merger, of a separation agreement the parties had theretofore executed. The judgment provided, as had the agreement, that the custody of the child was to be in the mother. Pertinent to custody and visitation, it was express in reciting that the Supreme Court, concurrently with the Family Court, retained jurisdiction "for the purposes of specifically enforcing such provision of the agreement as are capable of specific enforcement or, to the extent permitted by law of making such further decree * * * as it finds appropriate under the circumstances existing at the time application for that purpose is made" (see Domestic Relations Law, § 240, subd. 1; McKinney's Cons. Laws of N.Y., Ann., 1980 N.Y. Court Rules, p. 417, § 699.9, J 13).

Since the decree did not spell out the details of the paternal visitation rights in haec verba, we must turn to the surviving separation agreement. Fairly generous in scope, these visits included one weekday afternoon each week, two-day visits every other weekend, alternating Easter and Christmas holiday seasons and two continuous weeks during the summer. It is not disputed that the father availed himself fully and regularly of these opportunities for communion with his son. Nor does there appear to be any question but that the relationship so nurtured was strong and positive. Indeed, the factual findings make clear that, during the more than five years that have gone by since the divorce, the parties, to their mutual credit, each fully respecting the other's role as custodian or noncustodian, have been concerned and dedicated parents.

It is also relevant to this case that, according to the agreement, "the Husband and the Wife shall continue to live separate and apart from each other and (that) each may reside from time to time at such place or places of residence or abode as he or she shall respectively choose". Upon this clause the mother in part premises her contention that she is free to move to Las Vegas with the child.

As nisi prius, the mother further explained that, as a single person residing with her child in the former marital suburban residence in Westchester, ¹ she found herself confined by the social limitations of a community of married persons and pressed by the impact of inflation on a relatively tight budget. As she saw it, relocation to Las Vegas might solve her problems. In the less structured environment of that city, where she would seek suitable employment, preferably by putting an interest in singing to vocational advantage after a lapse of some 15 years, she hoped to find fulfillment. While she recognized that the barrier of physical distance thus interposed between father and son would severely curtail their visits, she nevertheless rationalized the end result as one which, overall, served the child's best interest, in her own words, "since I am in charge of the day-to-day upbringing of my son, if I am happy and well-adjusted with my surroundings, chances are that my son will be as well".

The Trial Judge, in making what he acknowledged to be a difficult decision all the more so because, in an in camera interview, the boy had stated a preference for remaining in New York so that he could be near his father concluded, on balance, that the mother was entitled "to improve her own life, so long as that move does not injure the child". In reaching its contrary view, the Appellate Division held that the consequent interference with visitation rights was not warranted by the circumstances presented. For the reasons which follow, we uphold its determination.

Prefatorily, we turn to the mother's reliance on the residency clause, the unqualified language of which, if read in isolation, would seemingly leave her free to reside wherever she chooses. However, the first operative provision in a fairly extensive separation agreement, it smacks more of the kind of "boilerplate" commonly employed by many draftsmen primarily to memorialize the fact that the parties are to respect their separated state (see, e. g., 1 Lindey, Separation Agreements and Ante-Nuptial Agreements, Form 8.02 at pp. 8-1 8-2). Significantly, it makes no reference to the child. Most important, it does not take into account the extensive and explicit provisions for the father's meaningful access to his son, covenants which would be rendered illusory were the residence clause to be read as if it stood alone. For the general principle is that an agreement, where possible, should be read as a whole so as to give each section meaning. Even so, as the Trial Judge, who correctly refused to posit his decision on either the residence clause or the visitation provisions alone, correctly noted, such agreements are not immutable.

It is also well to consider the attitudes of the law on parental visitation. Sometimes referred to as a "natural" parental right (Matter of Denberg v. Denberg, 34 Misc.2d 980, 986 (J. IRWIN SHAPIRO, J.) 229 N.Y.S.2d 831; Fournie, Post-Divorce Visitation: A Study in the Deprivation of Rights, 27 De Paul L.Rev. 113, 117), this appellation is too narrow. It ignores the primacy of the child's welfare (see Matter of Ebert v. Ebert, 38 N.Y.2d 700, 702, 382 N.Y.S.2d 472, 346 N.E.2d 240. Domestic Relations Law, § 70). Where the physical and emotional well-being of a child is involved, it is, at best, anomalous that its protection should be dependent on the vindication of the "rights" of the parents. Visitation is a joint right of the noncustodial parent and of the child (cf. Henszey, Visitation by a Non-Custodial Parent: What is the "Best Interest" Doctrine?, 15 Journal of Family Law 213, 214-215). This view does not lose sight of the fact that while legal custody may be in one or both of the parents, the fact that it is placed in one does not necessarily terminate the role of the other as a psychological guardian and preceptor (see Gardner, Psychotherapy with Children of Divorce, p. 381).

How valuable the mature guiding hand and love of a second parent may be to a child is taught by life itself. This is surely so when the...