| Matter of Sullivan v Moore |
| 2012 NY Slip Op 04015 [95 AD3d 1223] |
| May 23, 2012 |
| Appellate Division, Second Department |
| In the Matter of Thomas P. Sullivan III,Respondent, v Melissa Moore, Appellant. |
—[*1] Dina S. Kaplan, White Plains, N.Y., for respondent. Eve Bunting-Smith, White Plains, N.Y., attorney for the children.
In a proceeding pursuant to Family Court Act article 6, the mother appeals, by permission,from an order of the Family Court, Westchester County (Klein, J.), dated November 7, 2011,which temporarily granted, without a hearing, the father's application for supervised visitationwith the parties' children pending the final outcome of the proceedings. By decision and order onmotion dated December 22, 2011, this Court stayed enforcement of the order pending hearingand determination of the appeal.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Family Court, Westchester County, for further proceedings consistent herewith,to be conducted forthwith.
"An order affecting visitation, like an order modifying custody, must be addressed solely tothe infant's best interests" (Kresnicka v Kresnicka, 48 AD2d 929, 929 [1975]; see Matter of Leichter-Kessler vKessler, 71 AD3d 1148 [2010]; Hizme v Hizme, 212 AD2d 580 [1995])."Generally, an evidentiary hearing is necessary regarding a modification of visitation" (Matter of Jeffers v Hicks, 67 AD3d800, 801 [2009]; see Matter ofPerez v Sepulveda, 51 AD3d 673 [2008]). However, "[a] party seeking a change invisitation or custody is not automatically entitled to a hearing, but must make an evidentiaryshowing sufficient to warrant a hearing" (Matter of Leichter-Kessler v Kessler, 71 AD3dat 1149; see Matter of Grant vHunter, 64 AD3d 779 [2009]; Matter of Grassi v Grassi, 28 AD3d 482 [2006]). "[A] hearing willnot be necessary where the court possesses adequate relevant information to enable it to make aninformed and provident determination as to the child's best interest" (Matter of Hom v Zullo, 6 AD3d536, 536 [2004]; see Matter ofJeffers v Hicks, 67 AD3d 800 [2009]).
Here, the father petitioned to enforce visitation with the parties' children as set forth in ajudgment of divorce, alleging that he was in compliance with the conditions for visitation as setforth in that judgment. However, this allegation was disputed by the mother, and the father'spapers were insufficient to conclusively establish his compliance. Since the Family Court did not,on its [*2]own, possess adequate relevant information to enable itto make a determination as to the best interests of the child in the absence of a hearing, it waserror to temporarily grant the father's application for supervised visitation without first holding ahearing.
Accordingly, the matter must be remitted to the Family Court, Westchester County, for ahearing with respect to the father's petition. Balkin, J.P., Leventhal, Hall and Cohen, JJ., concur.