Tarulli v. D'Amico , 60 A.D.2d 582 ( 1977 )

In a habeas corpus proceeding pursuant to section 72 of the Domestic Relations Law, the appeal is from an order of the Family Court, Richmond County, dated August 16, 1976, which, inter alia, granted petitioners visitation rights with their grandchildren, subject however to the agreement of the grandchildren. Order modified, on the facts, by deleting therefrom the provision which conditions the petitioners’ visitation rights upon the approval of their grandchildren. As so modified, order affirmed, without costs or disbursements. The circumstances of this case involve a long and bitter struggle between the grandparents and the father of these children as to the grandparents’ visitation rights. While the Family Court provided for specific visitation rights, it stated that no visitation could be had against the wishes of the children. This placed the final decision as to visitation in the hands of the three children, none of whom were then over 10 years of age. They are obviously incompetent to make such a decision and should not be forced to choose where their loyalties should lie as between their father and their grandparents. To subject them to such choice is against their best interests. Since the Family Court found that visitation was in the best interests of the children, it should not have made such visitation subject to the choice of the children (see Domestic Relations Law, § 72). Rabin, J. P., Shapiro, Suozzi and O’Connor, JJ., concur.