| Matter of Carl v McEver |
| 2011 NY Slip Op 07321 [88 AD3d 1089] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Frank Carl, Appellant, v Heather McEver,Respondent. |
—[*1] Diane V. Bruns, Ithaca, for appellant. Pamela B. Bleiwas, Ithaca, for respondent. Iska Ziver, Ithaca, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Tompkins County (Sherman, J.),entered July 15, 2010, which, among other things, in four proceedings pursuant to Family Ct Actarticle 6, granted respondent's motion for summary judgment.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarriedparents of two children (a daughter born in 1994 and a son born in 1995). Pursuant to a 1995custody order, the mother has primary custody of the children and the father has limited,supervised visitation. In 1999, the father was convicted of sexual battery in Florida (seegenerally Fla Stat Ann, tit 46, § 794.011) and served a sentence of imprisonment. As aresult, after his release and return to New York, the father registered here as a risk level one sexoffender (see Correction Law § 168-l [6] [a] ["risk of repeat offense islow"]). In 2007, he petitioned for, among other things, increased visitation with the children, andthe mother cross-petitioned to terminate his visitation altogether. Family Court (Rowley, J.)ordered a probation investigation of both parents and a psychological evaluation of the father.The parties then stipulated to discontinue the father's petition and, after the mother's motion forsummary judgment on her cross petition was denied by Supreme Court (Rowley, J.), herproceeding was also discontinued by stipulation prior to any hearing being held.[*2]
In 2010, the father commenced these proceedingsseeking, among other things, enforcement and modification of the 1995 order. The mothercross-petitioned, again seeking termination of the father's visitation, and she also moved again forsummary judgment. The father opposed the motion and requested a hearing. Family Court(Sherman, J.) granted the mother's motion without a hearing and terminated the father's visitationbased upon his status as an untreated sex offender as well as the court's finding that the father hadengaged in harassment of the mother, absented himself from the children's lives and shown"apparent indifference to his parental responsibilities." The father now appeals.[FN*]
While there is no dispute that there has been a substantial change in circumstances since theentry of the 1995 order, we must agree with the father's contention that, without a hearing, therewas insufficient evidence upon which Family Court could conclude that visitation would bedetrimental to the children's best interests (see Matter of Howard v Barber, 47 AD3d 1154, 1155 [2008]; Matter of Frierson v Goldston, 9 AD3d612, 614 [2004]; Matter of Kenneth H. v Barbara G., 256 AD2d 1029, 1029-1030[1998]; see also Matter of Afton C.[James C.], 17 NY3d 1, 10-11 [2011]). Generally, an evidentiary hearing is necessary toresolve the best interests question (see Matter of Howard v Barber, 47 AD3d at 1155; Matter of Anthony MM. v Rena LL.,34 AD3d 1171, 1172 [2006], lv denied 8 NY3d 805 [2007]), as there is apresumption that visitation with a noncustodial parent is in a child's best interests (see Matter of Culver v Culver, 82AD3d 1296, 1297 [2011], appeal dismissed 16 NY3d 884 [2011], lv denied17 NY3d 710 [2011]; Matter ofAlbanese v Albanese, 44 AD3d 1117, 1120 [2007]). This presumption will only beovercome by substantial evidence that the visitation will be detrimental to the child's welfare (see Matter of Brown v Erbstoesser, 85AD3d 1497, 1499 [2011]; Matter ofFlood v Flood, 63 AD3d 1197, 1198 [2009]).
Here, there is no evidence in the record that the father was ever ordered to complete sexoffender treatment and, although Family Court had access to the 2007 probation report andpsychological evaluation of the father, neither conclusively demonstrates that the father requiredsuch treatment or that visitation with the father would be detrimental to the children's welfare.Also, although it was undisputed that an order of protection was granted in favor of the motherwith respect to an incident in 2007, the parties alleged differing accounts as to the underlyingevent and there is nothing in the record before us to support the contention of the mother that thefather was convicted of harassment in the second degree. Further, the father raised issues of factregarding his absence from the children's lives, alleging that he attempted to maintain arelationship with the children and attributing his delay in seeking visitation after thediscontinuance of the 2007 proceedings to the order of protection entered against him and hisdeparture from the area for employment until August 2009. In view of the factual issues here andthe lack of sufficient information on which to determine whether modification of the prior orderwould be in the children's best interests, we must remit for an evidentiary hearing (see Matterof Howard v Barber, 47 AD3d at 1155; Matter of Patricia YY. v Albany County Dept. ofSocial Servs., 238 AD2d 672, 674 [1997]; cf. Matter of Enrique T. v Annamarie M., 15 AD3d 310, 311[2005]).[*3]
Spain, J.P., Lahtinen, Garry and Egan Jr., JJ., concur.Ordered that the order is reversed, on the law, without costs, motion denied and matter remittedto the Family Court of Tompkins County for further proceedings not inconsistent with thisCourt's decision.
Footnote *: The appeal from that part ofFamily Court's order that dismissed the father's petition seeking visitation as to another child(born in 1998) is not addressed in his brief and is, therefore, deemed abandoned (see Matter of Anesi v Brennan, 75AD3d 791, 792 n [2010]).