Wheeler v. Wheeler
| Citation | 537 N.Y.S.2d 387,147 A.D.2d 939 |
| Parties | Judith B. WHEELER, Respondent, v. Alan G. WHEELER, Appellant. |
| Decision Date | 03 February 1989 |
| Court | New York Supreme Court — Appellate Division |
Jeffrey and O'Brien, P.C. by Gordon Jeffery, Clinton, for appellant.
Howard J. Woronov, Syracuse, for respondent.
Before DOERR, J.P., and BOOMER, GREEN, BALIO and DAVIS, JJ.
The father of two children, 14 and 11 years of age, appeals from an order of Family Court which directed him to "comply with all religious restrictions and prohibitions concerning the children imposed by petitioner (mother) relating to the children's attendance at religious services during his periods of visitation." This was error. The court's order was made without the benefit of a hearing to determine whether the father's insistence that the children attend Christian Science religious services was contrary to the best interests of the children. No testimony was taken from the parents or the children on this issue and the court made no specific finding that the children were being harmed in any way (cf., Matter of Bentley v. Bentley, 86 A.D.2d 926, 448 N.Y.S.2d 559; Garvar v. Faltings, 54 A.D.2d 971, 389 N.Y.S.2d 32). Accordingly, we remit the matter for such a hearing (see, Kresnicka v. Kresnicka, 48 A.D.2d 929, 369 N.Y.S.2d 522) at which the mother will have the burden of proof in establishing such harm (see, Gruber v. Gruber, 87 A.D.2d 246, 451 N.Y.S.2d 117; Perlstein v. Perlstein, 76 A.D.2d 49, 429 N.Y.S.2d 896). Moreover, a law guardian should be appointed for the children (see, Family Court Act §§ 241, 249 [a] ) and the children should be heard (see, Martin v. Martin, 308 N.Y. 136, 123 N.E.2d 812).
Order insofar as appealed from unanimously reversed on the law with costs and matter remitted to Oneida County Family Court for further proceedings.
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Colley v. Colley
... ... Nayyar, 174 A.D.2d 1012, 572 N.Y.S.2d 821; compare, Wheeler v. Wheeler, ... 147 A.D.2d 939, 537 N.Y.S.2d 387), and there is no indication in the record that this provision is contrary to the best interest of ... ...