| Matter of New v Sharma |
| 2012 NY Slip Op 00213 [91 AD3d 652] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| In the Matter of Robert S. New, Appellant, v Emma T.Sharma, Respondent. |
—[*1] Patricia Miller Latzman, Port Washington, N.Y., attorney for the child.
In related visitation proceedings pursuant to Family Court Act article 6, the father appealsfrom an order of the Family Court, Nassau County (Eisman, J.), dated December 7, 2010, which,without a hearing, in effect, denied his petition to modify a prior order of visitation of the samecourt dated January 14, 2010, and granted the application of the attorney for the child to modifythe prior order of visitation so as to limit the father's parenting time to brief visits with the childat public places.
Ordered that the order dated December 7, 2010, is reversed, on the law and the facts, withoutcosts or disbursements, and the matter is remitted to the Family Court, Nassau County, for ahearing on the father's petition and the application of the attorney for the child, including an incamera interview with the child, before a different Judge, and thereafter a new determination ofthe petition and the application; and it is further,
Ordered that pending the hearing and determination of the petition and the application, thevisitation provisions as set forth in the order dated January 14, 2010, shall remain in effect.
In October 2010 the father filed a petition to modify a prior order of visitation dated January14, 2010. In opposing the father's petition, the attorney for the child, based on the father'ssubmissions, requested that the Court limit the father's parenting time to periods of "shortduration and in a specific location." In an order dated December 7, 2010, the Family Court,without a hearing, in effect, denied the father's petition and granted the application of the attorneyfor the child to modify the prior order of visitation dated January 14, 2010, so as to limit thefather's parenting time to brief visits at public places. The father appeals.
Contrary to the father's contention, the Family Court had the authority to grant the reliefrequested by the attorney for the child in her opposition to his petition (cf. Matter of Myers v Markey, 74AD3d 1344, 1345 [2010]; Clair vFitzgerald, 63 AD3d 979, 980-981 [2009]).
However, under the circumstances of this case, the Family Court erred by, in effect, denyingthe father's petition and granting the application of the attorney for the child without conducting afull evidentiary hearing. "Generally, visitation should be determined after a full evidentiaryhearing to determine the best interests of the child" (Matter of Pettiford-Brown v Brown,[*2]42 AD3d 541, 542 [2007]; see Matter of Riemma v Cascone, 74AD3d 1082, 1082 [2010]). A hearing is not necessary, however, "where the court possessesadequate relevant information to enable it to make an informed and provident determination as tothe child[ ]'s best interest" (Matter of Riemma v Cascone, 74 AD3d at 1082-1083[internal quotation marks omitted]; seeMatter of Perez v Sepulveda, 51 AD3d 673 [2008]).
Here, the Family Court did not possess adequate relevant information to determine that thelimitation of the father's parenting time to brief visits at public places was in the best interests ofthe child (see Matter of Riemma v Cascone, 74 AD3d at 1083; Matter of Rivera v Administration forChildren's Servs., 13 AD3d 636, 637 [2004]; cf. Rosenberg v Rosenberg, 60 AD3d 658 [2009]; Matter of Potente v Wasilewski, 51AD3d 675, 676 [2008]). To the extent that the Family Court relied on the detailed accountsprovided by the attorney for the child concerning her conversations with the child, it isinappropriate for an attorney for the child to present " 'reports containing facts which are not partof the record' " (Cervera v Bressler,50 AD3d 837, 841 [2008], quoting Weiglhofer v Weiglhofer, 1 AD3d 786, 789 n [2003]; see22 NYCRR 7.2 [b]).
Accordingly, the matter must be remitted to the Family Court, Nassau County, for a hearingon the father's petition and the application of the attorney for the child, including an in camerainterview with the child, and thereafter a new determination of the father's petition and theapplication of the attorney for the child. In light of certain remarks made by the Family CourtJudge, the proceeding should be held before a different Judge.
The father's remaining contentions either are without merit or need not be reached in light ofthe foregoing determination. Rivera, J.P., Leventhal, Belen and Roman, JJ., concur.