Opinion
2013-03-27
In the Matter of Thierry E. LEW, appellant, v. Dorothy M. LEW, respondent.
William A. Sheeckutz, Massapequa, N.Y., for appellant. Lester & Associates, P.C., Garden City, N.Y. (Roy J. Lester of counsel), for respondent.
William A. Sheeckutz, Massapequa, N.Y., for appellant. Lester & Associates, P.C., Garden City, N.Y. (Roy J. Lester of counsel), for respondent.
James E. Flood, Jr., Massapequa, N.Y., attorney for the child.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.
In a visitation proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Nassau County (Pizzolo, Ct. Atty. Ref.), dated January 12, 2012, which, upon directing that the father could not file further petitions until he satisfied certain conditions, without a hearing, dismissed the petition with prejudice.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for further proceedings consistent herewith, to be conducted forthwith.
“[A] noncustodial parent is entitled to meaningful visitation. Denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child” ( Matter of Pettiford–Brown v. Brown, 42 A.D.3d 541, 542, 840 N.Y.S.2d 118 [internal quotation marks omitted]; see Matter of Walker v. Diaz, 95 A.D.3d 1225, 943 N.Y.S.2d 913;Matter of Kachelhofer v. Wasiak, 10 A.D.3d 366, 780 N.Y.S.2d 290). Generally, visitation should be determined after a full evidentiary hearing to determine the best interests of the child ( see Matter of Feldman v. Feldman, 79 A.D.3d 871, 912 N.Y.S.2d 438;Matter of Franklin v. Richey, 57 A.D.3d 663, 665, 869 N.Y.S.2d 187;Matter of Pettiford–Brown v. Brown, 42 A.D.3d at 542, 840 N.Y.S.2d 118). “However, a hearing will not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child['s] best interest” ( Matter of Peluso v. Kasun, 78 A.D.3d 950, 951, 910 N.Y.S.2d 689 [internal quotation marks omitted]; see Matter of Feldman v. Feldman, 79 A.D.3d at 871, 912 N.Y.S.2d 438;Matter of Hom v. Zullo, 6 A.D.3d 536, 775 N.Y.S.2d 66).
Here, the Family Court did not possess adequate relevant information to determine that supervised visitation with the father, as provided for in the parties' judgment of divorce, was not in the subject child's best interests. Accordingly, the court erred in dismissing the father's petition to enforce the supervised visitation provisions of the judgment of divorce without an evidentiary hearing ( see Matter of Sullivan v. Moore, 95 A.D.3d 1223, 944 N.Y.S.2d 641;Matter of Riemma v. Cascone, 74 A.D.3d 1082, 903 N.Y.S.2d 141;Matter of Pettiford–Brown v. Brown, 42 A.D.3d at 542, 840 N.Y.S.2d 118;see also Matter of Rodriguez v. Hangartner, 59 A.D.3d 630, 631, 874 N.Y.S.2d 501).
Moreover, “a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation” ( Matter of Smith v. Dawn F.B., 88 A.D.3d 729, 730, 930 N.Y.S.2d 75;see Matter of Lane v. Lane, 68 A.D.3d 995, 997–998, 892 N.Y.S.2d 130;Matter of Thompson v. Yu–Thompson, 41 A.D.3d 487, 488, 837 N.Y.S.2d 313). Thus, it was also improper for the Family Court to determine that the father could not file further petitions concerning his visitation rights until he completed, inter alia, therapeutic counseling, anger management classes, and parenting skill classes ( see Matter of Smith v. Dawn F.B., 88 A.D.3d at 730, 930 N.Y.S.2d 75;Matter of Lane v. Lane, 68 A.D.3d at 998, 892 N.Y.S.2d 130;Matter of Williams v. O'Toole, 4 A.D.3d 371, 372, 771 N.Y.S.2d 546).
Accordingly, the matter must be remitted to the Family Court, Nassau County, for an evidentiary hearing and a new determination of the father's petition.
The father's contention that the Court Attorney Referee should have recused himself is without merit ( see Galanti v. Kraus, 98 A.D.3d 559, 949 N.Y.S.2d 638;Hayden v. Gordon, 91 A.D.3d 819, 822, 937 N.Y.S.2d 299).
The parties' remaining contentions are without merit.