Opinion
2012-10-10
In the Matter of Clifford BURGESS, appellant, v. Doris BURGESS, respondent.
Del Atwell, East Hampton, N.Y., for appellant. Rachel A. Camillery, Babylon, N.Y., attorney for the children.
Del Atwell, East Hampton, N.Y., for appellant. Rachel A. Camillery, Babylon, N.Y., attorney for the children.
In a visitation proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Orlando, Ct.Atty.Ref.), dated July 26, 2011, which, without a hearing, denied the petition.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for a full evidentiary hearing to determine the best interests of the children and a new determination of the father's petition for visitation.
In this case, the father petitioned for visitation with the subject children, born on December 17, 2002, and March 6, 2006. The father alleged that the children resided with the mother in Bay Shore. The father was incarcerated at Woodbourne Correctional Facility.
At an appearance in the Family Court on July 25, 2011, the mother's attorney moved to dismiss the petition. The Family Court, in effect, denied the mother's motion and held what it referred to as a hearing on the merits, at which the attorneys for the father, the mother, and the children advanced their clients' respective positions. No witnesses were called. On the next day, the Family Court rendered its decision on the record, denying the petition, and issued the order appealed from, denying the father's petition. The father appeals. We reverse the order and remit the matter to the Family Court, Suffolk County, for a full evidentiary hearing to determine the best interests of the children and a new determination of the father's petition for visitation.
“[T]he determination of visitation is within the sound discretion of the hearing court based upon the best interests of the child, and its determination will not be set aside unless it lacks a substantial basis in the record” (Matter of Cardona v. Vantassel, 96 A.D.3d 1052, 1052, 946 N.Y.S.2d 876 [internal quotation marks omitted]; see Matter of Smith v. Smith, 92 A.D.3d 791, 792, 938 N.Y.S.2d 601; Matter of McLean v. Simpson, 82 A.D.3d 1101, 1101, 918 N.Y.S.2d 896;Matter of Franklin v. Richey, 57 A.D.3d 663, 664, 869 N.Y.S.2d 187).
“ ‘Absent exceptional circumstances, some form of visitation with the noncustodial parent is always appropriate’ ” (Matter of Franklin v. Richey, 57 A.D.3d at 664, 869 N.Y.S.2d 187, quoting Matter of McFarland v. Smith, 53 A.D.3d 500, 500, 859 N.Y.S.2d 567;see Weiss v. Weiss, 52 N.Y.2d 170, 175, 436 N.Y.S.2d 862, 418 N.E.2d 377). “While it is true that a parent's incarceration does not, by itself, render visitation inappropriate, visitation will be denied where there is substantial evidence that such visitation would be detrimental to the child” (Matter of Morales v. Bruno, 29 A.D.3d 1001, 1001, 816 N.Y.S.2d 536 [citations omitted]; see Matter of Cardona v. Vantassel, 96 A.D.3d at 1052, 946 N.Y.S.2d 876;Matter of Smith v. Smith, 92 A.D.3d at 792, 938 N.Y.S.2d 601;see also Matter of Garraway v. Laforet, 68 A.D.3d 1192, 1193, 889 N.Y.S.2d 768).
“Generally, [v]isitation should be decided after a full evidentiary hearing to determine the best interests of the child. A hearing is not necessary, however, where the court possesses adequate relevant information to make an informed determination of the children's best interests” (Matter of Johnson v. Alaji, 74 A.D.3d 1202, 1202, 902 N.Y.S.2d 410 [internal quotation marks and citation omitted]; see Matter of Cardona v. Vantassel, 96 A.D.3d at 1052, 946 N.Y.S.2d 876;Matter of McLean v. Simpson, 82 A.D.3d at 1101, 918 N.Y.S.2d 896;Matter of Franklin v. Richey, 57 A.D.3d at 665, 869 N.Y.S.2d 187).
Under the circumstances of this case, including the lack of sufficient information before the Family Court to permit a comprehensive, independent review of the children's best interests, the Family Court erred in denying the father's petition without a full evidentiary hearing ( see Matter of Tanner v. Tanner, 35 A.D.3d 1102, 1103, 826 N.Y.S.2d 503;see also Matter of Pettiford–Brown v. Brown, 42 A.D.3d 541, 542, 840 N.Y.S.2d 118). Accordingly, we reverse the order and remit the matter to the Family Court, Suffolk County, for a full evidentiary hearing to determine the best interests of the children and for a new determination of the father's petition ( see Matter of Tanner v. Tanner, 35 A.D.3d at 1103, 826 N.Y.S.2d 503;see also Matter of Pettiford–Brown v. Brown, 42 A.D.3d at 542, 840 N.Y.S.2d 118).