Summary
In Matter of Gregston v. Amatulli, 273 AD2d 384, 709 NYS2d 599 (2nd Dept. 2000), the Appellate Court held that when a factual dispute exists as to the best interests of the children, a hearing is mandated.
Summary of this case from In Matter of Cocose v. Diane B.Opinion
Argued May 9, 2000.
June 19, 2000.
In sibling visitation proceedings pursuant to Family Court Act article 6, the petitioner appeals from an order of the Family Court, Nassau County (Eisman, J.), entered May 14, 1999, which granted the motion of Bruce M. Loren, the Law Guardian, to prohibit the petitioner from having any contact or communication with her half-siblings, and dismissed the proceeding.
Roberta Nancy Kaufman, Hicksville, N.Y., for appellant.
Lisa M. Comeau, New York, N.Y., Law Guardian for the children.
Before: DAVID S. RITTER, J.P., FRED T. SANTUCCI, MYRIAM J. ALTMAN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is reversed, with costs, and the matter is remitted to the Family Court, Nassau County, for an evidentiary hearing and a determination of the petition in accordance herewith, to be held forthwith. In the interim, the petitioner shall continue not to have any contact or communication with her half-siblings.
In this proceeding the petitioner, Frances Gregston, sought visitation with her half-siblings, Theodore and Crystal, who have been adopted by their foster parents. The Law Guardian for Theodore and Crystal moved to prohibit Frances from having any contact with them based on information he received from the children's social workers and therapists that such contact would be detrimental to the welfare of the half-siblings.
The Family Court erred in failing to conduct a hearing under the circumstances presented. While it is true that a petitioner in a sibling visitation proceeding has no absolute right to a hearing (see, Domestic Relations Law § 71; see also, Matter of O'Hanlon v. Cornelius, 213 A.D.2d 406; Strauss v. Ingber, 208 A.D.2d 608), where, as here, there is a factual dispute as to the best interests of the petitioner's half-siblings, a hearing should be held (see, Matter of Agusta v. Carousso, 208 A.D.2d 620; Matter of Loretta D. v. Commissioner of Soc. Servs. of City of New York, 177 A.D.2d 573).
Under the particular circumstances of this case, at the outset, the Family Court should determine whether the single representation of Theodore and Crystal by one Law Guardian creates any conflict, and whether separate Law Guardians should be appointed for each child.
We note that the record is not clear as to whether the Law Guardian was aware of his duties as set forth in Family Court Act § 241 Fam. Ct. Act.