Opinion
December 26, 1991
Appeal from the Ontario County Family Court, Henry, Jr., J.
Present — Denman, P.J., Boomer, Pine, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Ontario County Family Court for further proceedings, in accordance with the following Memorandum: The record supports the determination of Family Court that it is in the best interests of the child that respondent be awarded sole custody (see, Eschbach v Eschbach, 56 N.Y.2d 167; Friederwitzer v Friederwitzer, 55 N.Y.2d 89; Matter of Gotham v Gotham, 102 A.D.2d 981, 982). We conclude, however, that the court erred in denying petitioner visitation with the child. It is well established that visitation is a joint right of the noncustodial parent and child (see, Weiss v Weiss, 52 N.Y.2d 170, 175; Twersky v Twersky, 103 A.D.2d 775). We have stated that "[t]he denial of visitation to a noncustodial parent constitutes such a drastic remedy that it should be ordered only when there are compelling reasons, and there must be substantial evidence that such visitation is detrimental to the children's welfare" (Vasile v Vasile, 116 A.D.2d 1021; see also, De Pinto v De Pinto, 98 A.D.2d 985; Parker v Ford, 89 A.D.2d 806). Moreover, "[v]isitation may not be denied solely for reasons unrelated to the welfare of the children" (Vasile v Vasile, supra, at 1021). Here, there was no substantial evidence presented to support a conclusion that visitation with petitioner would be detrimental to the child's welfare. Accordingly, we remit the matter to the Family Court, Ontario County, for further proceedings consistent herewith to determine the terms and conditions of petitioner's visitation with the child and, if the court deems it necessary and appropriate, to order a social investigation and conduct a hearing.