Opinion
No. CAF 06-02831.
February 28, 2008.
Appeal from an order of the Family Court, Onondaga County (David G. Klim, J.), entered November 10, 2005 in a proceeding pursuant to Family Court Act article 6. The order, insofar as appealed from, granted petitioner's motion and terminated the visitation rights of respondent.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (ROBERT P. RICKERT OF COUNSEL), FOR RESPONDENT-APPELLANT.
Present: Hurlbutt, J.P., Martoche, Smith, Peradotto and Pine, JJ.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is denied and the matter is remitted to Family Court, Onondaga County, for a hearing in accordance with the following memorandum: Petitioner mother commenced this proceeding seeking, inter alia, to terminate visitation between respondent father and the parties' daughter, who is now 10 years old. The father is incarcerated based upon his conviction of, inter alia, arson in the first degree. We agree with the father that Family Court erred in granting the mother's motion for summary judgment on the petition and in terminating visitation without conducting a hearing inasmuch as there was not "sufficient information before the court to enable it to undertake an independent comprehensive review of the child's best interests" ( Matter of Kenneth H. v Barbara G, 256 AD2d 1029, 1029; see Matter of Rhynes v Rhynes, 288 AD2d 864). Indeed, we note that "the record is devoid of information concerning the circumstances of the [arson, and s]uch information is relevant to the issue whether [the father] poses any risk to his child and thus to whether visitation is appropriate" ( Matter of Steven M. v Meghan M., 43 AD3d 1349, 1349-1350). We further note that, although the Law Guardian was present when the parties appeared for argument of the mother's motion for summary judgment, the record does not reflect any advocacy on behalf of the child. We therefore reverse the order insofar as appealed from, deny petitioner's motion and remit the matter to Family Court for a hearing to determine whether visitation is in the child's best interests ( see id. at 1350).