Opinion
January 27, 1992
Appeal from the Family Court, Kings County (Schechter, J.).
Ordered that the order is modified, on the law and as a matter of discretion, by deleting the language "shall constitute grounds for forfeiture of the entire principal and any accrued interest in the escrow account to the Respondent, which forfeiture will not result in reduction of any liability or obligation for child support which may exist at the time of forfeiture or thereafter" and substituting therefor the following: "shall subject the petitioner to the imposition of a fine or damages or any other remedy including but not limited to the partial or entire forfeiture of the principal and any accrued interest in the escrow account, as the court may deem appropriate in relation to the extent of the violation"; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
Under the circumstances, we find that the Family Court properly directed the petitioner father to establish an escrow account in the amount of $15,000 to ensure the prompt return of the children to their mother at the end of each visitation period. The father had previously absconded from the jurisdiction and out of the country with the youngest child for a period of several months without the knowledge or permission of the mother. The mother's fear of repetition of such an incident is well grounded, and the establishment of an escrow account as a condition precedent to visitation is warranted (see, Matter of Berlin v. Berlin, 21 N.Y.2d 371, 378, remittitur amended 21 N.Y.2d 970, cert denied 393 U.S. 840; Lolli-Ghetti v. Lolli-Ghetti, 162 A.D.2d 198; Schoonheim v. Schoonheim, 92 A.D.2d 474; Meltzer v. Meltzer, 54 A.D.2d 633; Matter of Grassi v. Grassi, 40 A.D.2d 546; Matter of Reinhart v. Reinhart, 33 Misc.2d 80, 82).
However, we are in agreement that the forfeiture provision is unduly harsh and is an improvident exercise of discretion (see, e.g., Schoonheim v. Schoonheim, supra). The purpose of posting a bond or establishing an escrow account is to furnish security for performance by the party establishing the escrow account of the conditions set forth in the order establishing visitation (see, Schoonheim v. Schoonheim, supra). If there is a violation of the conditions, the court should, at that time, determine the appropriate sanction and what sum, if any, should be paid from the escrow account as a penalty for the violation. Therefore, we modify the order accordingly.
We have considered the appellant's remaining contention and find it to be without merit. Eiber, J.P., Rosenblatt, O'Brien and Ritter, JJ., concur.