Opinion
May 7, 1999
Appeal from Order of Monroe County Family Court, Miller, J. — Visitation.
Order unanimously reversed on the law and in the exercise of discretion without costs and matter remitted to Monroe County Family Court for further proceedings in accordance with the following Memorandum: In denying the petition for visitation, Family Court did not apply the proper burden of proof. "It is generally presumed to be in a child's best interest to have visitation with his or her noncustodial parent and the fact that a parent is incarcerated will not, by itself, render visitation inappropriate" ( Matter of Davis v. Davis, 232 A.D.2d 773). Denial of visitation to an incarcerated parent "`is a drastic remedy and should only be done where there are compelling reasons * * * and * * * substantial evidence that such visitation is detrimental to the child's welfare'" ( Matter of Rhynes v. Rhynes, 242 A.D.2d 943, quoting De Pinto v. De Pinto, 98 A.D.2d 985). The record is not sufficient to determine whether visitation would be detrimental to the welfare of petitioner's son, and we remit the matter for a new hearing at which the court shall consider the full range of factors pertinent to that determination ( see, Matter of Lazier v. Gentes, 259 A.D.2d 618; Matter of DiMedio v. DiMedio, 233 A.D.2d 394, 396; see also, Borne Chem. Co. v. Dictrow, 85 A.D.2d 646, 650-651).
Present — Green, J. P., Pine, Wisner, Hurlbutt and Callahan, JJ.