| Matter of Riemma v Cascone |
| 2010 NY Slip Op 05409 [74 AD3d 1082] |
| June 15, 2010 |
| Appellate Division, Second Department |
| In the Matter of Vincent Riemma, Appellant, v Maria C.Cascone, Respondent. |
—[*1] Domenik Veraldi, Jr., Islandia, N.Y., for respondent. Catherine C. Desanto, Riverhead, N.Y., attorney for the children.
In a proceeding pursuant to Family Court Act article 6, the father appeals from an order ofthe Family Court, Suffolk County (Lynaugh, J.), dated September 25, 2009, which, without ahearing, in effect, denied that branch of his petition which was to modify a prior order ofvisitation of the same court dated August 10, 2007, so as to award him unsupervised overnightvisitation with the parties' children at his home, and modified the order dated August 10, 2007, todirect that the father shall have unsupervised visitation with the parties' children "at such timesas [the] father and the children can agree."
Ordered that the order dated September 25, 2009, is reversed, on the law, on the facts, and inthe exercise of discretion, without costs or disbursements, and the matter is remitted to theFamily Court, Suffolk County, for a hearing on that branch of the petition which was to modifythe order dated August 10, 2007, so as to award the father unsupervised overnight visitation withthe parties' children at the father's home and an in camera interview with the children, andthereafter a new determination thereafter; and it is further,
Ordered that the hearing and in camera interview with the children shall be held forthwith;and it is further,
Ordered that pending the hearing, in camera interview, and new determination, the FamilyCourt, Suffolk County, shall issue an immediate interim visitation order directing that the fathershall have unsupervised visitation with the children from 10:00 a.m. to 8:00 p.m. on at least oneweekend day of every month, and shall pick up the children at, and return them to, the mother'sresidence for these unsupervised visitations.
"Generally, an evidentiary hearing is necessary regarding a modification of visitation" (Matter of Jeffers v Hicks, 67 AD3d800, 801 [2009]; see Matter ofRivera v Administration for Children's Servs., 13 AD3d 636, 637 [2004]). "[A] hearingwill not be necessary where the court possesses adequate relevant information to enable it tomake an informed and provident determination as to the child[ren]'s best [*2]interest" (Matter of Hom v Zullo, 6 AD3d 536, 536 [2004]; see Matter of Perez v Sepulveda, 51AD3d 673 [2008]; Matter ofWilliams v O'Toole, 4 AD3d 371 [2004]; Matter of Smith v Molody-Smith, 307AD2d 364, 364-365 [2003]).
Under the circumstances of this case, the Family Court did not possess adequate relevantinformation to, in effect, deny that branch of the father's petition which was to modify a priororder of visitation of the same court dated August 10, 2007, so as to award him unsupervisedovernight visitation with the parties' children at his home (see Matter of Pettiford-Brown v Brown, 42 AD3d 541, 542 [2007];Matter of Rivera v Administration for Children's Serv., 13 AD3d at 637). Accordingly,we remit the matter to the Family Court, Suffolk County, for a hearing on that branch of thepetition which was to modify the order of visitation dated August 10, 2007, so as to award thefather unsupervised overnight visitation with the parties' children at his home and an in camerainterview with the children, to be conducted forthwith, and thereafter a new determination.Moreover, pending the hearing, in camera interview, and new determination, the Family Courtshall issue an immediate interim visitation order directing that the father shall have unsupervisedvisitation with the children from 10:00 a.m. to 8:00 p.m. on at least one weekend day of everymonth, and that the father shall pick up the children at, and return them to, the mother's residencefor these unsupervised visitations. Rivera, J.P., Florio, Miller and Austin, JJ., concur.