Opinion
October 14, 1976
Judgment, Supreme Court, New York County, entered December 17, 1975, dismissing the writ of habeas corpus, unanimously reversed, on the law and the facts and in the exercise of discretion, and the matter remanded for a full hearing on the issue of the father's visitation rights, without costs or disbursements. The parties were divorced in Connecticut in 1974. There are two infant issue of the marriage whose custody was awarded to the mother. After the divorce, the mother moved to New York and the father to Florida. The husband had visitation rights at Christmas and Easter times. In her petition, the mother alleges, inter alia, that the husband wrongfully arranged for a Thanksgiving visit with the children, and furthermore that while the teen-aged daughters were in the custody of the father they were introduced to the use of marijuana and alcoholic beverages as well as subjected to "promiscuous, uncontrolled, unsupervised sex situations." Special Term dismissed the petition, finding that the relief the mother sought was not properly the subject of a habeas corpus proceeding. The dismissal was without prejudice to the petitioner's applying for a modification of the custody and support provisions in the decree. We find that, since the court had jurisdiction over the parties and the welfare of minor children was involved (cf. Martin v Martin, 52 A.D.2d 144), the court should have held a hearing on the issue of visitation, though the proceeding, may have been instituted in improper form (CPLR 103, subd [c]).
Concur — Murphy, J.P., Birns, Silverman, Capozzoli and Lane, JJ.