Moore v. Moore , 155 A.D.2d 995 ( 1989 )

— Order unanimously reversed on the law with costs and petition dismissed. Memorandum: Petitioner commenced this proceeding in Family Court, seeking modification of a long-standing arrangement granting respondent visitation with the parties’ six-year-old daughter each weekend commencing on Friday evening and ending on Sunday afternoon. Petitioner sought to have respondent’s weekend visitation conclude on Saturday evening. Petitioner’s reason for requesting an end to Sunday visitation was that respondent, contrary to the child’s wishes, compels the child to attend a two-hour church service each Sunday. In her testimony, petitioner stated that she is not opposed to the child’s being exposed to the teachings of respondent’s faith. Moreover, as Family Court recognized in its decision, petitioner could point to no harm to the child as a result of being compelled to attend the religious service. Petitioner testified merely that she did not want the child to attend because the child did not want to attend.

Following the hearing, the court found that it was "totally selfish” of respondent and contrary to the best interests of the child for respondent to force her to sit through a two-hour religious service each week. Consequently, the court ordered respondent to refrain from requiring the child to attend church for more than one hour.

In the absence of a conflict between the parties concerning the religious upbringing of the child, and absent any showing that the child is harmed as a result of having to sit through a two-hour church service, the court abused its discretion in restraining respondent from keeping the child in church for more than one hour. In these circumstances, the court has no authority to intrude upon respondent’s parental discretion and authority and thus may not substitute its own view that mandatory church attendance is an inappropriate activity for the child. (Appeal from order of Herkimer County Family Court, LaRaia, J. — visitation.) Present — Dillon, P. J., Callahan, Denman, Green and Lawton, JJ.