| Matter of Burgess v Burgess |
| 2012 NY Slip Op 06805 [99 AD3d 797] |
| October 10, 2012 |
| Appellate Division, Second Department |
| In the Matter of Clifford Burgess, Appellant, v DorisBurgess, Respondent. |
—[*1] Rachel A. Camillery, Babylon, N.Y., attorney for the children.
In a visitation proceeding pursuant to Family Court Act article 6, the father appeals from anorder of the Family Court, Suffolk County (Orlando, Ct. Atty. Ref.), dated July 26, 2011, which,without a hearing, denied the petition.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Family Court, Suffolk County, for a full evidentiary hearing to determine thebest interests of the children and a new determination of the father's petition for visitation.
In this case, the father petitioned for visitation with the subject children, born on December17, 2002, and March 6, 2006. The father alleged that the children resided with the mother in BayShore. The father was incarcerated at Woodbourne Correctional Facility.
At an appearance in the Family Court on July 25, 2011, the mother's attorney moved todismiss the petition. The Family Court, in effect, denied the mother's motion and held what itreferred to as a hearing on the merits, at which the attorneys for the father, the mother, and thechildren advanced their clients' respective positions. No witnesses were called. On the next day,the Family Court rendered its decision on the record, denying the petition, and issued the orderappealed from, denying the father's petition. The father appeals. We reverse the order and remitthe matter to the Family Court, Suffolk County, for a full evidentiary hearing to determine thebest interests of the children and a new determination of the father's petition for visitation.
"[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 Cardona v Vantassel, 96 AD3d 1052, 1052 [2012] [internal quotation marksomitted]; see Matter of Smith vSmith, 92 AD3d 791, 792 [2012]; Matter of McLean v Simpson, 82 AD3d 1101, 1101 [2011]; Matter of Franklin v Richey, 57 AD3d663, 664 [2008]).
" 'Absent exceptional circumstances, some form of visitation with the noncustodial parent isalways appropriate' " (Matter of Franklin v Richey, 57 AD3d at 664, quoting Matter of McFarland v Smith, 53AD3d 500, 500 [2008]; see Weiss v Weiss, 52 NY2d 170, 175 [1981]). "While it istrue [*2]that a parent's incarceration does not, by itself, rendervisitation inappropriate, visitation will be denied where there is substantial evidence that suchvisitation would be detrimental to the child" (Matter of Morales v Bruno, 29 AD3d 1001, 1001 [2006] [citationsomitted]; see Matter of Cardona v Vantassel, 96 AD3d at 1052; Matter of Smith vSmith, 92 AD3d at 792; see alsoMatter of Garraway v Laforet, 68 AD3d 1192, 1193 [2009]).
"Generally, [v]isitation should be decided after a full evidentiary hearing to determine thebest interests of the child. 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, 1202 [2010] [internal quotation marks and citation omitted]; see Matter ofCardona v Vantassel, 96 AD3d at 1052; Matter of McLean v Simpson, 82 AD3d at1101; Matter of Franklin v Richey, 57 AD3d at 665).
Under the circumstances of this case, including the lack of sufficient information before theFamily Court to permit a comprehensive, independent review of the children's best interests, theFamily Court erred in denying the father's petition without a full evidentiary hearing (see Matter of Tanner v Tanner, 35AD3d 1102, 1103 [2006]; see alsoMatter of Pettiford-Brown v Brown, 42 AD3d 541, 542 [2007]). Accordingly, wereverse the order and remit the matter to the Family Court, Suffolk County, for a full evidentiaryhearing to determine the best interests of the children and for a new determination of the father'spetition (see Matter of Tanner v Tanner, 35 AD3d at 1103; see also Matter ofPettiford-Brown v Brown, 42 AD3d at 542). Angiolillo, J.P., Dickerson, Belen and Miller,JJ., concur.