Opinion
2014-02404, Docket Nos. V-4669-12, V-4670-12.
04-29-2015
In the Matter of Chaelese BELL, respondent, v. Donte MAYS, appellant.
Joseph J. Artrip, Cornwall, N.Y., for appellant. Michele Marte–Indzonka, Newburgh, N.Y., for respondent. Helene M. Greenberg, Elmsford, N.Y., attorney for the children.
Joseph J. Artrip, Cornwall, N.Y., for appellant.
Michele Marte–Indzonka, Newburgh, N.Y., for respondent.
Helene M. Greenberg, Elmsford, N.Y., attorney for the children.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and HECTOR D. LaSALLE, JJ.
Opinion Appeal from an order of the Family Court, Orange County (Andrew P. Bivona, J.), entered January 7, 2014. The order, without a hearing, granted the mother's petition for sole legal and physical custody of the parties' children and awarded the father visitation only to the extent as agreed upon by the parties.
ORDERED that the order is modified, on the law, by adding a provision thereto directing an evidentiary hearing to determine the best interests of the children and for a new determination of father's visitation; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Orange County, for further proceedings consistent herewith.
The mother petitioned for sole legal and physical custody of the parties' children while the father was incarcerated. In the order appealed from, the Family Court, without a hearing, granted the mother's petition and awarded the father visitation only to the extent as agreed upon by the parties.
In adjudicating custody and visitation rights, the best interests of the child is the paramount factor to be considered (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). Generally, an evidentiary hearing is necessary to determine issues of custody or visitation (see Matter of Schyberg v. Peterson, 105 A.D.3d 857, 858, 962 N.Y.S.2d 671 ). However, a hearing may not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the children's best interests (see id.; Matter of New v. Sharma, 91 A.D.3d 652, 653, 936 N.Y.S.2d 265 ).Contrary to the father's contention, the Family Court possessed adequate relevant information to enable it to make an informed determination, without a hearing, as to whether it was in the subject children's best interests to grant the mother's petition for sole legal and physical custody (see generally Matter of Aquino v. Antongiorgi, 92 A.D.3d 780, 781, 938 N.Y.S.2d 460 ).
However, the Family Court erred in, without a hearing, awarding the father visitation only to the extent as agreed upon by the parties. “Absent exceptional circumstances, some form of visitation with the noncustodial parent is always appropriate” (Matter of Franklin v. Richey, 57 A.D.3d 663, 664, 869 N.Y.S.2d 187 [internal quotation marks omitted], see Weiss v. Weiss, 52 N.Y.2d 170, 175, 436 N.Y.S.2d 862, 418 N.E.2d 377 ; Matter of McFarland v. Smith, 53 A.D.3d 500, 859 N.Y.S.2d 567 ). Visitation with a noncustodial parent is presumed to be in the best interests of a child, even when that parent is incarcerated (see Matter of Granger v. Misercola, 21 N.Y.3d 86, 91, 967 N.Y.S.2d 872, 990 N.E.2d 110 ; Matter of Kadio v. Volino, 126 A.D.3d 1253, 4 N.Y.S.3d 766 ; Matter of Torres v. Pascuzzi–Corniel, 125 A.D.3d 675, 3 N.Y.S.3d 106 ; Matter of Georghakis v. Matarazzo, 123 A.D.3d 711, 995 N.Y.S.2d 915 ). That presumption may be rebutted, however, by demonstrating, by a preponderance of the evidence, that “under all the circumstances visitation would be harmful to the child's welfare, or that the right to visitation has been forfeited” (Matter of Granger v. Misercola, 21 N.Y.3d at 91, 967 N.Y.S.2d 872, 990 N.E.2d 110 ; see Matter of Burgess v. Burgess, 99 A.D.3d 797, 798, 951 N.Y.S.2d 893 ; Matter of Cardona v. Vantassel, 96 A.D.3d 1052, 1052–1053, 946 N.Y.S.2d 876 ; Matter of Smith v. Smith, 92 A.D.3d 791, 792, 938 N.Y.S.2d 601 ; Matter of Morales v. Bruno, 29 A.D.3d 1001, 1001, 816 N.Y.S.2d 536 ). Here, the Family Court did not possess adequate relevant information to enable it to make an informed determination as to the children's best interests so as to render a hearing unnecessary on the issue of the father's visitation.
Accordingly, we modify the order appealed from and remit the matter to the Family Court, Orange County, for an evidentiary hearing to determine the best interests of the children and a new determination regarding the father's visitation with the children.