| Matter of Cardona v Vantassel |
| 2012 NY Slip Op 05168 [96 AD3d 1052] |
| June 27, 2012 |
| Appellate Division, Second Department |
| In the Matter of Kenneth Cardona, Appellant, v Jean L.Vantassel, Respondent. |
—[*1] Charles S. Sherman, Garden City, N.Y., for respondent. Diane B. Groom, Central Islip, N.Y., attorney for the child.
In a visitation proceeding pursuant to Family Court Act article 6, the father appeals from anorder of the Family Court, Suffolk County (Boggio, Ct. Atty. Ref.), dated June 17, 2011, which,without a hearing, dismissed the petition.
Ordered that the order is affirmed, without costs or disbursements.
" '[T]he determination of visitation is within the sound discretion of the hearing court basedupon the best interests of the child, and its determination will not be set aside unless it lacks asubstantial basis in the record' " (Matterof McLean v Simpson, 82 AD3d 1101, 1101 [2011], quoting Matter of Kachelhofer v Wasiak, 10AD3d 366 [2004] [citations omitted]; see Matter of Smith v Smith, 92 AD3d 791, 793 [2012]; Matter of Franklin v Richey, 57 AD3d663, 665 [2008]). "Absent exceptional circumstances, some form of visitation with thenoncustodial parent is always appropriate" (Matter of Franklin v Richey, 57 AD3d at 664,quoting Matter of McFarland vSmith, 53 AD3d 500, 500 [2008] [internal quotation marks omitted]; see Weiss vWeiss, 52 NY2d 170, 175 [1981]). "While a parent's incarceration, standing alone, does notmake visitation inappropriate" (Matter of Marcial v Sullivan, 296 AD2d 551 [2002];see Matter of Davis v Davis, 232 AD2d 773 [1996]; Matter of Wise v Del Toro,122 AD2d 714, 714-715 [1986]), " 'visitation will be denied where there is substantial evidencethat such visitation would be detrimental to the child' " (Matter of Smith v Smith, 92AD3d at 792, quoting Matter of Moralesv Bruno, 29 AD3d 1001 [2006]; see Matter of McLean v Simpson, 82 AD3d at1101; Matter of Marcial v Sullivan, 296 AD2d at 551).
"Generally, [v]isitation should be decided after a full evidentiary hearing to determine thebest interests of the child[ren]. A hearing is not necessary, however, where the court possessesadequate relevant information to make an informed determination of the children's best interests"(Matter of Johnson v Alaji, 74AD3d 1202, 1203 [2010] [internal quotation marks and citations omitted]).
Here, there is a substantial basis in the record to support a finding that visitation with thefather would not be in the child's best interests (see Matter of McLean v Simpson, 82AD3d at 1102; Matter of Butler vEwers, 78 AD3d 1667 [2010]; Matter of Johnson v Alaji, 74 AD3d at 1203).[*2]
The father's remaining contentions are without merit.
Accordingly, the father's petition was properly dismissed. Rivera, J.P., Dickerson, Hall andCohen, JJ., concur.