Casolari v. Zambuto

Nov 21, 2003
Versions:1 A.D.3d 1031
1 A.D.2d 1031
767 N.Y.S.2d 369
2003 N.Y. App. Div. LEXIS 12382

Appeal from an order of Family Court, Monroe County (Sciolino, J.), entered February 2, 2001, which, inter alia, directed that sole custody of the children shall continue with respondent and set forth periods of visitation for petitioner.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the 6th and 17th ordering paragraphs and as modified the order is affirmed without costs.

Memorandum: Petitioner father appeals from an order denying his petitions, granting respondent mother’s petition in part and modifying the existing visitation schedule with respect to the parties’ children. We agree with petitioner that Family Court erred in ordering that “the children shall be encouraged, but not forced to visit with [him].” Under the circumstances, that direction “ ‘tends unnecessarily to defeat the right of visitation’ ” (Sturm v Lyding, 96 AD2d 731, 731-732 [1983], quoting Mahler v Mahler, 72 AD2d 739, 739 [1979]; see Pincus v Pincus, 138 AD2d 687, 688 [1988]; cf. Matter of Marotta v Fariello, 207 AD2d 450, 451-452 [1994]). We also agree with petitioner that the court erred in restricting him from filing new petitions without leave of the court. “Public policy generally mandates free access to the courts” (Matter of Leopold, 287 AD2d 718, 718 [2001]) and there is no proof that petitioner has abused the judicial process (cf Matter of Shreve v Shreve, 229 AD2d 1005, 1006 [1996]). We thus modify the order by vacating the 6th and 17th ordering paragraphs. Present — Wisner, J.P., Hurlbutt, Scudder, Gorski and Lawton, JJ.