Vann v. Vann

187 A.D.2d 821, 589 N.Y.S.2d 715, 1992 N.Y. App. Div. LEXIS 12854

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1992
• Status: Published

Opinion

Appeal from an order of the Family Court of Tompkins County (Barrett, J.), entered January 6, 1992, which dismissed petitioner’s application, in a proceeding pursuant to Family Court Act article 6, to find respondent in violation of a prior order of visitation.

Petitioner commenced this proceeding claiming that, as a result of a prior order of Family Court, he is entitled to visitation with his two children. Without indicating its reason therefor, Family Court dismissed the petition on its own motion. Although petitioner is incarcerated, this fact, standing alone, does not mean that petitioner’s right to visitation should automatically be forfeited (see, Matter of Wise v Del Toro, 122 AD2d 714; Matter of R. J. v D. J., 133 Misc 2d 883, 884). Rather, because it is presumed that visitation is in a child’s best interest (see, Matter of Nathaniel T., 97 AD2d 973, 974) and the denial thereof is a drastic measure (see, Janousek v Janousek, 108 AD2d 782, 784), visitation will only be denied where there is substantial evidence that it would be detrimental to the child’s welfare (see, Weiss v Weiss, 52 NY2d 170, 175). As Family Court denied petitioner the opportunity to present evidence regarding his right to visitation, the matter must be remitted to that court for a hearing (see, Matter of Wise v Del Toro, supra).

Mikoll, J. P., Yesawich Jr., Mercure, Crew III and Casey, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Tompkins County for further proceedings not inconsistent with this Court’s decision.