| Matter of Marshall v Bradley |
| 2009 NY Slip Op 01370 [59 AD3d 870] |
| February 26, 2009 |
| Appellate Division, Third Department |
| In the Matter of Eric C. Marshall, Appellant, v Sierra P. Bradley,Respondent, et al., Respondent. (And Four Other RelatedProceedings.) |
—[*1] Francisco Berry, Ithaca, for Sierra P. Bradley, respondent. Thomas F. Garner, Law Guardian, Middleburgh.
Malone Jr., J. Appeal from an order of the Family Court of Chenango County (Sullivan, J.),entered March 12, 2007, which dismissed petitioner's applications, in five proceedings pursuantto Family Ct Act article 6, for, among other things, modification of a prior order of custody.
Petitioner (hereinafter the father) and respondent Sierra P. Bradley (hereinafter the mother)are the parents of a daughter (born in 2005). In August 2006, Family Court issued an orderdirecting that the mother and the maternal grandmother have joint custody of the child, and thefather have visitation. In January 2007, following the filing of several violation and modificationpetitions by both parents, Family Court issued a custody order upon stipulation directing that thefather and the mother share joint custody of the child and setting forth the visitation schedule tobe followed. The father proceeded to file a petition for modification of the [*2]custody order as well as four other petitions for violation ofvisitation.[FN1]
During proceedings before Family Court, the parents agreed that the petitions would bewithdrawn upon clarification of the father's visitation schedule and the mother's submission to adrug test, to which she consented. The mother's counsel, in turn, requested the father to undergoa drug test as well. After denying the father's request for new counsel, Family Court asked him ifhe was willing to take a drug test. When he refused, Family Court ended the proceedings bydismissing the pending petitions, terminating the visitation portion of the January 2007 custodyorder and directing the mother and father to work out visitation.[FN2]The father appeals.
Under the circumstances presented here, we are compelled to find that Family Courtimproperly dismissed the petitions and terminated the visitation portion of the January 2007custody order. Preliminarily, we note that decisions concerning visitation are "left to FamilyCourt's sound discretion and . . . will not be disturbed as long as there is a soundand substantial basis in the record" (Matter of Roe v Roe, 33 AD3d 1152, 1155 [2006]; see Matter of Conklin v Hernandez, 41AD3d 908, 910 [2007]). Notably, the guiding inquiry in making such decisions is what is inthe best interests of the child (seeMatter of Moore v Schill, 44 AD3d 1123, 1123 [2007]; Matter of Conklin vHernandez, 41 AD3d at 910). "Visitation by a noncustodial parent is presumed to be in thechild's best interest and should be denied only in exceptional situations, such as wheresubstantial evidence reveals that visitation would be detrimental to the welfare of the child" (Matter of Frierson v Goldston, 9 AD3d612, 614 [2004] [citation omitted]; see Matter of Tanner v Tanner, 35 AD3d 1102, 1103 [2006]).
In the case at hand, the record reveals that no inquiry was made into the best interests of thechild prior to Family Court's dismissal of the petitions and termination of the January 2007custody order governing visitation. Indeed, the transcript of the proceedings before Family Courtdiscloses that the court and the parties discussed the proposed drug testing of the father and themother as well as the father's request for new counsel, but that no mention was made of thechild's best interests as they related to visitation. In addition, Family Court did not make anyinquiry regarding the evidence supporting the violation or modification petitions. Rather, thecourt abruptly dismissed the petitions and terminated the visitation portion of the January 2007custody order after the father indicated that he would not submit to a drug test. It is conceivablethat the court relied upon information gleaned through prior dealings with the mother and father(see e.g. Matter of Newton vSimons, 52 AD3d 895, 896 [2008]). That, however, is not evident from the recordbefore us. Consequently, the matter must be remitted to Family Court for further development ofthe record in this regard (see id.). Furthermore, given the absence of a law guardianrepresenting the child's interests in the proceedings before Family Court, a law guardian must beappointed in connection with any further proceedings (see Matter of Flores v DeAbreu, 32 AD3d 1025, 1026 [2006]). Inview of our disposition, we need not address the father's remaining claim.
Mercure, J.P., Peters, Kane and Stein, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and matter remitted to the Family Court of Chenango County for theappointment of a law guardian to represent the interests of the child and for further proceedingsnot inconsistent with this Court's decision.
Footnote 1: The grandmother, who wasnamed as a respondent in one of the violation petitions, has not appeared.
Footnote 2: Family Court also issued anorder directing the parents to submit to drug tests, from which no appeal has been taken.