Opinion
July 6, 1961
Orders, entered on March 24, 1961 and May 25, 1961, reversed, on the law, and in the exercise of discretion, and a hearing directed on the issues involved. (See People ex rel. Fields v. Kaufmann, 9 A.D.2d 375.) Under the circumstances present an adjournment for a reasonable period, as requested, might have been in the best interests of the parties. (See Field v. Field, 1 A.D.2d 643.) January 23, 1959, the parties entered into a separation agreement which provided in detail, inter alia, for the care, custody and support of the infant and visitation rights for the father. Both parties at that time were represented by counsel. The agreement was adopted by the court which, by its decree, modified the earlier judgment of separation and expressly stated therein "if the terms and conditions of said Agreement conflict with the judgment and amendments thereof * * * the terms of said Agreement shall prevail." The record indicates that both parties have upon occasion violated the terms of the agreement. The joy of battling seems to have taken precedence over what should have been of primary concern to these parents, that is, the welfare of the infant. Upon a motion by defendant-appellant, brought on by an order to show cause, to punish plaintiff-respondent for contempt, the court, in denying the motion and without a hearing, modified the custody provisions and also restricted and later suspended certain rights of visitation by the father as provided for in the agreement. While it may be that some changes are desirable and should be made, it is our view that such drastic action should not be taken by judicial fiat, but only after a full and comprehensive hearing is accorded the parties.
Concur — Breitel, J.P., Rabin, Valente, McNally and Stevens, JJ.