Lonobile v. Betkowski

261 A.D.2d 829, 689 N.Y.S.2d 790, 1999 N.Y. App. Div. LEXIS 4858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1999
• Status: Published

Opinion

—Order unanimously reversed on the law and in the exercise of discretion without costs and matter remitted to Monroe County Family Court for further proceedings in accordance with the following Memorandum: In denying the petition for visitation, Family Court did not apply the proper burden of proof. “It is generally presumed to be in a child’s best interest to have visitation with his or her noncustodial parent and the fact that a parent is incarcerated will not, by itself, render visitation inappropriate” (Matter of Davis v Davis, 232 AD2d 773). Denial of visitation to an incarcerated parent “ ‘is a drastic remedy and should only be done where there are compelling reasons * * * and * * * substantial evidence that such visitation is detrimental to the child’s welfare’” (Matter of Rhynes v Rhynes, 242 AD2d 943, quoting De Pinto v De Pinto, 98 AD2d 985). The record is not sufficient to determine whether visitation would be detrimental to the welfare of petitioner’s son, and we remit the matter for a new hearing at which the court shall consider the full range of factors pertinent to that determination (see, Matter of Lazier v Gentes, 259 AD2d 618; Matter ofDiMedio v DiMedio, 233 AD2d 394, 396; see also, Borne Chem. Co. v Dictrow, 85 AD2d 646, 650-651). (Appeal from Order of Monroe County Family Court, Miller, J. — Visitation.) Present — Green, J. P., Pine, Wisner, Hurlbutt and Callahan, JJ.