Opinion
February 27, 1987
Appeal from the Erie County Family Court, Honan, J.
Present — Callahan, J.P., Denman, Green, Pine and Lawton, JJ.
Order unanimously reversed on the law without costs and matter remitted to Erie County Family Court for a hearing, in accordance with the following memorandum: The issue presented is whether visitation of the infant by her maternal grandmother is in the best interests of the child, who has been in the care and custody of the Erie County Department of Social Services (Agency) since October 1984. The issue of visitation, like that of custody, may not be determined on the basis of opposing affidavits but only after a plenary hearing based on the best interests of the child (Kresnicka v Kresnicka, 48 A.D.2d 929; Matter of Scranton v. Hutter, 40 A.D.2d 296, 299; see also, Domestic Relations Law § 72; Family Ct Act § 651 [a]; Lo Presti v. Lo Presti, 40 N.Y.2d 522, 527; People ex rel. Smith v. Kudler, 71 A.D.2d 634). Although there have been two hearings thus far in this case, no testimony has been taken and no findings of fact or conclusions of law have been made on whether the best interests of the child will be served by continued visitation with the grandmother. Accordingly, we remit this matter to Erie County Family Court for a best interests hearing to be held before a different Judge (see, Matter of Amy W., 122 A.D.2d 592; Matter of Blake v. Blake, 106 A.D.2d 916; Raysor v. Gabbey, 57 A.D.2d 437, 438).
Finally, although we find no abuse of discretion in Family Court's rulings permitting a representative of the news media to be present at the two prior hearings held in this matter, if the issue again arises at the best interests hearing, the court should base its decision, in whole or in part, upon the considerations outlined in the Uniform Rules of Family Court (see, Uniform Rules for Trial Cts, 22 NYCRR 205.4 [b] [eff Jan. 6, 1986]).