Mills v. Sweeting

278 A.D.2d 943, 718 N.Y.S.2d 558, 2000 N.Y. App. Div. LEXIS 13646

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2000
• Status: Published

Opinion

Order unanimously reversed on the law without costs and matter remitted to Cayuga County Family Court for further proceedings in accordance with the following Memorandum: Petitioner, an inmate at a correctional facility, commenced this proceeding seeking visitation with his son. He appeals from an order limiting his visitation to three to four times per year and requiring him to send respondent sufficient sums to pay for the travel expenses for herself and the child before each visit. Family Court’s order was made on the consent of respondent; petitioner was not present. “[A]n award of visitation is always conditioned upon a consideration of the best interests of the child” (Matter of Rhynes v Rhynes, 242 AD2d 943). Further, “[a] determination of the [child’s] best interests should only be made after a full evidentiary hearing unless there is sufficient information before the court to enable it to undertake an independent comprehensive review of the [child’s] best interests” (Matter of Kenneth H. v Barbara G., 256 AD2d 1029). The court erred in deciding the petition without conducting a hearing to determine the best interests of the child with respect to visitation with petitioner or otherwise affording petitioner the opportunity to be heard (see, Matter of Kenneth H. v Barbara G., supra, at 1029-1030; see also, Matter of Rhynes v Rhynes, supra). We therefore reverse the order and remit the matter to Cayuga County Family Court for that purpose. (Appeal from Order of Cayuga County Family Court, Corning, J. — Visitation.) Present — Wisner, J. P., Hurlbutt, Scudder and Kehoe, JJ.