Wheeler v. Wheeler
147 A.D.2d 939
N.Y. App. Div.
1989
Check Treatment

— Order insofar as appealed from unanimously reversed on the law with costs and matter remitted to Oneida County Family Court for further proceedings, in accordance with the following memorandum: 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 AD2d 926; Garuar u Faltings, 54 AD2d 971). Accordingly, we remit the matter for such a hearing (see, Kresnicka u Kresnicka, 48 AD2d 929) at which the mother will have the burden of proof in establishing such harm (see, Gruber u Gruber, 87 AD2d 246; Perlstein u Perlstein, 76 AD2d 49). Moreover, a Law Guardian should be appointed for the children (see, Family Ct Act §§ 241, 249 [a]) and the children should be heard (see, Martin u Martin, 308 *940NY 136). (Appeal from order of Oneida County Family Court, Flemma, J. — enforce visitation order.) Present — Doerr, J. P., Boomer, Green, Balio and Davis, JJ.