Gowan v. Menga

174 A.D.2d 977

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1991
• Status: Published

Opinion

—Case held, decision reserved, motion to relieve counsel of assignment granted, and new counsel to be assigned. Memorandum: Petitioner’s attorney has moved to be relieved of his assignment on the ground that no nonfrivolous issues exist on appeal. We find that there are nonfrivolous issues overlooked by counsel; therefore, we relieve counsel of his assignment and assign new counsel to file a brief addressing all nonfrivolous issues found by counsel upon a review of the record. In our view, a nonfrivolous issue exists regarding whether the record supports the court’s determination to award respondent custody of the parties’ child and to deny petitioner all visitation rights. Visitation is a joint right of the noncustodial parent and child (see, Weiss v Weiss, 52 NY2d 170, 175; Twersky v Twersky, 103 AD2d 775). "Absent extraordinary circumstances, where visitation would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable visitation privileges” (Twersky v Twersky, supra, at 775-776; see also, Matter of Dervay v Dervay, 111 AD2d 462, 463; Matter of Schack v Schack, 98 AD2d 802). A second nonfrivolous issue concerns the fact that the Judge who presided over the fact-finding hearing initially directed that a social investigation be conducted, reserved decision pending receipt of the report, but did not render a decision. Rather, without explanation, a different Judge made the custody determination based solely upon his review of the reports of the social investigations. (Appeal from Order of Ontario County Family Court, Henry, Jr., J.—Custody.) Present—Dillon, P. J., Denman, Lawton, Lowery and Davis, JJ.