Opinion
2011-12-23
In the Matter of Eric DIEDRICH, Petitioner–Appellant, v. Michelle VANDERMALLIE, Respondent–Respondent.
Appeal from an order of the Family Court, Wayne County ( Maurice E. Strobridge, J.H.O.), entered December 22, 2010 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition.Converse & Morell, LLP, Palmyra (Bruce A. Rosekrans of Counsel), for petitioner-appellant. Elizabeth A. Sammons, Williamson, for respondent-respondent.
Appeal from an order of the Family Court, Wayne County ( Maurice E. Strobridge, J.H.O.), entered December 22, 2010 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition.Converse & Morell, LLP, Palmyra (Bruce A. Rosekrans of Counsel), for petitioner-appellant. Elizabeth A. Sammons, Williamson, for respondent-respondent.
Denise R. Munson, Attorney for the Child, Walworth, for Amber L.V.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Wayne County, for further proceedings in accordance with the following Memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner father appeals from an order dismissing his petition seeking visitation with the parties' child. We agree with the father that Family Court erred in granting the motion of respondent mother to dismiss the petition ( see generally Matter of Crowell v. Livziey, 20 A.D.3d 923, 798 N.Y.S.2d 279). “It is well settled that visitation with a noncustodial parent is generally presumed to be in a child's best interests” ( Matter of Mark C. v. Patricia B., 41 A.D.3d 1317, 1318, 837 N.Y.S.2d 473; see generally Weiss v. Weiss, 52 N.Y.2d 170, 175, 436 N.Y.S.2d 862, 418 N.E.2d 377), and denial of such visitation “ ‘is a drastic remedy to be employed only where there are compelling reasons for doing so and substantial evidence that visitation will be harmful to the child[ ]'s welfare’ ” ( Matter of Chapman v. Tucker, 74 A.D.3d 1905, 1906, 903 N.Y.S.2d 640). Here, we conclude that “the court abused its discretion by denying [the father] visitation with [the] child[ ] because no evidence was presented to support a conclusion that visitation with [the father] is detrimental to the child[ ]'s welfare” ( Vasile v. Vasile, 116 A.D.2d 1021, 1021, 498 N.Y.S.2d 635). We therefore reverse the order, reinstate the petition and remit the matter to Family Court for further proceedings on the petition.