Thomas v. Thomas

277 A.D.2d 935, 715 N.Y.S.2d 818, 2000 N.Y. App. Div. LEXIS 11507

Opinion

—Order unanimously reversed on the law without costs and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum: Petitioner contends that Family Court erred in denying his petition seeking visitation without holding an evidentiary hearing. We agree. “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; see, Matter of Lonobile v Betkowski, 261 AD2d 829; see also, Matter ofSelca v Selca, 267 AD2d 314, 315). Unless there is a compelling reason or substantial evidence that visitation with an incarcerated parent is detrimental to a child’s welfare, such visitation should not be denied (see, Matter of Folsom v Folsom, 262 AD2d 875, 875-876; Matter of Lonobile v Betkowski, supra; Yasile v Yasile, 116 AD2d 1021). Furthermore, “ ‘[a] determination of the children’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 children’s best interests’ ” (Matter of Folsom v Folsom, supra, at 876, quoting Matter of Kenneth H. v Barbara G., 256 AD2d 1029). Here, no sworn testimony or other evidence was presented, nor did the court conduct in camera interviews with the children. Rather, the court denied the petition based on petitioner’s record of incarceration, even though the children had visited petitioner in prison in the past and petitioner’s older daughter advised the Law Guardian that she did not wish to discontinue her relationship with petitioner. Because the record is not sufficient to determine whether visitation would be detrimental to petitioner’s children, we reverse the order and remit the matter to Erie County Family Court for an evidentiary hearing regarding that issue. (Appeal from Order of Erie County Family Court, Mix, J. — Visitation.) Present — Pigott, Jr., P. J., Wisner, Kehoe and Balio, JJ.