People ex rel. Cotter v. Kaytis

Appeal from an order (1) dismissing a writ of habeas corpus, (2) determining that the sole custody of the three children, for whose production the writ was issued, be awarded to respondent, their mother, and (3) denying appellant, the children’s father, the right of any visitation. Order affirmed, with costs, and without prejudice to an application by appellant after one year from the entry of the order hereon, if he be so advised, for reasonable rights of visitation. Nolan, P. J., Beldoek and Ughetta, JJ., concur; Kleinfeld, J., concurs in the affirmance of the order insofar as it dismisses the writ and awards custody of the children to respondent, but dissents insofar as the order denies visitation rights to appellant and votes to modify the order so as to grant appellant reasonable rights of visitation, with the following memorandum: The right of visitation may not be withheld from a father unless he has forfeited it by his conduct, or unless it would harm the child (People ex rel. Halvey v. Halvey, 185 Misc. 52, affd. 269 App. Div. 1019, affd. 295 N. Y. 836). In my opinion, the proof in this proceeding does not sustain the denial of visitation. There is no showing that visitation would harm the children or that it is sought in bad faith. Nor is the proof sufficient to establish that appellant by his conduct has forfeited all right of visitation.