Opinion
November 12, 1992
Appeal from the Family Court of Tompkins County (Barrett, J.).
Petitioner commenced this proceeding claiming that, as a result of a prior order of Family Court, he is entitled to visitation with his two children. Without indicating its reason therefor, Family Court dismissed the petition on its own motion. Although petitioner is incarcerated, this fact, standing alone, does not mean that petitioner's right to visitation should automatically be forfeited (see, Matter of Wise v Del Toro, 122 A.D.2d 714; Matter of R.J. v D.J., 133 Misc.2d 883, 884). Rather, because it is presumed that visitation is in a child's best interest (see, Matter of Nathaniel T., 97 A.D.2d 973, 974) and the denial thereof is a drastic measure (see, Janousek v Janousek, 108 A.D.2d 782, 784), visitation will only be denied where there is substantial evidence that it would be detrimental to the child's welfare (see, Weiss v Weiss, 52 N.Y.2d 170, 175). As Family Court denied petitioner the opportunity to present evidence regarding his right to visitation, the matter must be remitted to that court for a hearing (see, Matter of Wise v Del Toro, supra).
Mikoll, J.P., Yesawich Jr., Mercure, Crew III and Casey, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Tompkins County for further proceedings not inconsistent with this Court's decision.