Matter of Georghakis v. Matarazzo

123 A.D.3d 711, 995 N.Y.S.2d 915

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 2014
• Docket: 2014-01571
• Status: Published

Opinion

Appeal from an order of the Family Court, Suffolk County (David Freundlich, J.), dated January 27, 2014. In the order, the Family Court declined to sign the mother’s order to show cause accompanying her petition for visitation.

Ordered that on the Court’s own motion, the notice of appeal is deemed an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

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 further proceedings consistent herewith.

Generally, since visitation with a noncustodial parent is presumed to be in the best interests of a child, even when that parent is incarcerated (see Matter of Granger v Misercola, 21 NY3d 86, 90 [2013]; Matter of Telfer v Pickard, 100 AD3d 1050, 1051 [2012]; Matter of Ruple v Harkenreader, 99 AD3d 1085, 1086 [2012]; Matter of Culver v Culver, 82 AD3d 1296, 1297 [2011]), the Family Court erred in declining to sign the mother’s order to show cause accompanying her petition for visitation.

Accordingly, we remit the matter to the Family Court, Suffolk County, to sign the mother’s order to show cause commencing a visitation proceeding.

Skelos, J.P., Balkin, Austin and Barros, JJ., concur.