| Matter of Lew v Lew |
| 2013 NY Slip Op 02076 [104 AD3d 946] |
| March 27, 2013 |
| Appellate Division, Second Department |
| In the Matter of Thierry E. Lew,Appellant, v Dorothy M. Lew, Respondent. |
—[*1] Lester & Associates, P.C., Garden City, N.Y. (Roy J. Lester of counsel), forrespondent. James E. Flood, Jr., Massapequa, N.Y., attorney for the child.
In a visitation proceeding pursuant to Family Court Act article 6, the father appealsfrom an order of the Family Court, Nassau County (Pizzolo, Ct. Atty. Ref.), datedJanuary 12, 2012, which, upon directing that the father could not file further petitionsuntil he satisfied certain conditions, without a hearing, dismissed the petition withprejudice.
Ordered that the order is reversed, on the law, without costs or disbursements, andthe matter is remitted to the Family Court, Nassau County, for further proceedingsconsistent herewith, to be conducted forthwith.
"[A] noncustodial parent is entitled to meaningful visitation. Denial of that right is sodrastic that it must be based on substantial evidence that visitation would be detrimentalto the welfare of the child" (Matter of Pettiford-Brown v Brown, 42 AD3d 541, 542[2007] [internal quotation marks omitted]; see Matter of Walker v Diaz, 95 AD3d 1225 [2012]; Matter of Kachelhofer vWasiak, 10 AD3d 366 [2004]). Generally, visitation should be determined aftera full evidentiary hearing to determine the best interests of the child (see Matter of Feldman vFeldman, 79 AD3d 871 [2010]; Matter of Franklin v Richey, 57 AD3d 663, 665 [2008];Matter of Pettiford-Brown v Brown, 42 AD3d at 542). "However, a hearing willnot be necessary where the court possesses adequate relevant information to enable it tomake an informed and provident determination as to the child['s] best interest" (Matter of Peluso v Kasun, 78AD3d 950, 951 [2010] [internal quotation marks omitted]; see Matter ofFeldman v Feldman, 79 AD3d at 871; Matter of Hom v Zullo, 6 AD3d 536 [2004]).
Here, the Family Court did not possess adequate relevant information to determinethat supervised visitation with the father, as provided for in the parties' judgment ofdivorce, was not in the subject child's best interests. Accordingly, the court erred indismissing the father's petition to enforce the supervised visitation provisions of thejudgment of divorce without an evidentiary hearing (see Matter of Sullivan v Moore, 95 AD3d 1223 [2012]; Matter of Riemma v Cascone,74 AD3d 1082 [2010]; Matter of Pettiford-Brown v Brown, 42 AD3d at542; see also Matter ofRodriguez v Hangartner, 59 AD3d 630, 631 [2009]).[*2]
Moreover, "a court may not order that a parentundergo counseling or treatment as a condition of future visitation or reapplication forvisitation rights, but may only direct a party to submit to counseling or treatment as acomponent of visitation" (Matter of Smith v Dawn F.B., 88 AD3d 729, 730 [2011];see Matter of Lane v Lane,68 AD3d 995, 997-998 [2009]; Matter of Thompson v Yu-Thompson, 41 AD3d 487, 488[2007]). Thus, it was also improper for the Family Court to determine that the fathercould not file further petitions concerning his visitation rights until he completed, interalia, therapeutic counseling, anger management classes, and parenting skill classes(see Matter of Smith v Dawn F.B., 88 AD3d at 730; Matter of Lane vLane, 68 AD3d at 998; Matter of Williams v O'Toole, 4 AD3d 371, 372 [2004]).
Accordingly, the matter must be remitted to the Family Court, Nassau County, for anevidentiary hearing and a new determination of the father's petition.
The father's contention that the Court Attorney Referee should have recused himselfis without merit (see Galanti vKraus, 98 AD3d 559 [2012]; Hayden v Gordon, 91 AD3d 819, 822 [2012]).
The parties' remaining contentions are without merit. Mastro, J.P., Rivera, Hall andMiller, JJ., concur.