| Matter of Bray v DeStevens |
| 2010 NY Slip Op 08231 [78 AD3d 1564] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Kimberly Bray, Appellant, v Robert DeStevens,Respondent. |
—[*1] A.J. Bosman, Attorney for the Child, Rome, for Nathaniel B.
Appeal from an order of the Family Court, Oswego County (Bobette J. Morin, R.), enteredAugust 18, 2009 in a proceeding pursuant to Family Court Act article 6. The order dismissed thepetition for modification of custody.
It is hereby ordered that the order so appealed from is unanimously reversed on the law withoutcosts, the petition is reinstated and the matter is remitted to Family Court, Oswego County, for furtherproceedings on the petition.
Memorandum: Petitioner mother commenced this proceeding pursuant to Family Court Act article6 seeking communication, including telephone contact, and visitation with the parties' child. FamilyCourt dismissed the petition based on the failure of the mother to comply with a prior order requiringthat she "complete her alcohol and drug assessment and physiological assessment" as a conditionprecedent to any further visitation with the child. The mother was incarcerated at the time the orderappealed from was entered, but she was released to parole supervision during the pendency of thisappeal. We note at the outset that the mother's release to parole supervision does not render the appealmoot inasmuch as the mother did not seek communication and visitation with the child only for theduration of her incarceration (cf. Matter ofRyan M.B. v Mary R., 43 AD3d 1304 [2007]).
We conclude that the court erred in dismissing the petition based on the mother's failure to complywith a condition precedent. "It is well settled that [communication and] visitation with a noncustodialparent is generally presumed to be in a child's best interests" (Matter of Mark C. v Patricia B., 41 AD3d 1317, 1318 [2007]). A courtlacks authority to impose conditions precedent to the resumption of a parent's contact and visitationwith a child (see Matter of Hameed vAlatawaneh, 19 AD3d 1135 [2005]; Matter of Davenport v Ouweleen, 5 AD3d 1079 [2004]). We thereforereverse the order, reinstate the petition and remit the matter to Family Court for further proceedings onthe petition. Present—Centra, J.P., Fahey, Peradotto, Lindley and Green, JJ.