Opinion
December 14, 1964
In a habeas corpus proceeding, initiated by a father for the purpose of defining his visitation rights to his infant child in the mother's custody pursuant to a separation agreement, and to permit the father, for two weeks each Summer to take the child to California, the mother appeals from a resettled order of the Supreme Court, Kings County, entered October 21, 1963 without a hearing but upon a purported stipulation, which inter alia sustained the writ and granted permission to the father, during his annual two-week visitation period, to take the child anywhere outside of the State of New York, provided the child is returned to the mother at the conclusion of the said two-week visitation period. Order reversed on the law, without costs, and proceeding remitted to the Special Term for the purpose of: (1) holding a hearing at which oral testimony shall be taken with respect to all the issues of fact raised by the petition and return; and (2) making a determination de novo of all the issues on the basis of the proof adduced upon such hearing. No questions of fact have been considered. When controversial issues arise in a proceeding to determine visitation rights, such issues should not be decided without a hearing, especially if the decision may affect the welfare of the child involved. Beldock, P.J., Ughetta, Kleinfeld, Brennan and Hopkins, JJ., concur.