Tuesday, April 30, 2013

NEW YORK DIVORCE - CHILD CUSTODY & SUPERVISED VISITATION

I point out the following recent case: IN THE MATTER OF THIERRY E. LEW, Appellant, v. DOROTHY M. LEW, Respondent. 2013 NY Slip Op 02076, Appellate Division of the Supreme Court of New York, Second Department. Decided March 27, 2013 - which is quoted in part:

""[A] noncustodial parent is entitled to meaningful visitation. Denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child" (Matter of Pettiford-Brown v Brown, 42 A.D.3d 541, 542 [internal quotation marks omitted]; see Matter of Walker v Diaz, 95 A.D.3d 1225; Matter of Kachelhofer v Wasiak, 10 A.D.3d 366). Generally, visitation should be determined after a full evidentiary hearing to determine the best interests of the child (see Matter of Feldman v Feldman, 79 A.D.3d 871; Matter of Franklin v Richey, 57 A.D.3d 663, 665; Matter of Pettiford-Brown v Brown, 42 AD3d at 542). "However, a hearing will not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child['s] best interest" (Matter of Peluso v Kasun, 78 A.D.3d 950, 951[internal quotation marks omitted]; see Matter of Feldman v Feldman, 79 AD3d at 871;Matter of Hom v Zullo, 6 A.D.3d 536).
Here, the Family Court did not possess adequate relevant information to determine that supervised visitation with the father, as provided for in the parties' judgment of divorce, was not in the subject child's best interests. Accordingly, the court erred in dismissing the father's petition to enforce the supervised visitation provisions of the judgment of divorce without an evidentiary hearing (see Matter of Sullivan v Moore, 95 A.D.3d 1223; Matter of Riemma v Cascone, 74 A.D.3d 1082; Matter of Pettiford-Brown v Brown, 42 AD3d at 542; see also Matter of Rodriguez v Hangartner, 59 A.D.3d 630, 631).
Moreover, "a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation" (Matter of Smith v Dawn F.B., 88 A.D.3d 729, 730; see Matter of Lane v Lane, 68 A.D.3d 995, 997-998; Matter of Thompson v Yu-Thompson, 41 A.D.3d 487, 488). Thus, it was also improper for the Family Court to determine that the father could not file further petitions concerning his visitation rights until he completed, inter alia, therapeutic counseling, anger management classes, and parenting skill classes (see Matter of Smith v Dawn F.B., 88 AD3d at 730; Matter of Lane v Lane, 68 AD3d at 998; Matter of Williams v O'Toole, 4 A.D.3d 371, 372).
Accordingly, the matter must be remitted to the Family Court, Nassau County, for an evidentiary hearing and a new determination of the father's petition."

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