You are here: / / Family Court Should Not Have Directed that Visitation With the Father Be...

Family Court Should Not Have Directed that Visitation With the Father Be Only to the Extent Agreed Upon by the Parties Without Holding a Hearing—There Is a Presumption Visitation with a Noncustodial Parent Is In the Best Interests of the Child, Even Where the Noncustodial Parent Is Incarcerated—Absent Exceptional Circumstances, Visitation with a Noncustodial Parent Is Always Appropriate

The Second Department determined Family Court should not have held that father’s visitation with the children should only be to the extent agreed upon by the parties without first conducting a hearing to determine what visitation arrangement was in the best interests of the children.  The Second Department noted that (1) absent exceptional circumstances visitation with a noncustodial parent is always appropriate, (2) visitation with a noncustodial parent is presumed to be in the best interests of the child, even when the father is incarcerated, and (3) the presumption must be rebutted by a preponderance of the evidence:

Family Court erred in, without a hearing, awarding the father visitation only to the extent as agreed upon by the parties. “Absent exceptional circumstances, some form of visitation with the noncustodial parent is always appropriate” … . Visitation with a noncustodial parent is presumed to be in the best interests of a child, even when that parent is incarcerated … . That presumption may be rebutted, however, by demonstrating, by a preponderance of the evidence, that “under all the circumstances visitation would be harmful to the child’s welfare, or that the right to visitation has been forfeited” … . Here, the Family Court did not possess adequate relevant information to enable it to make an informed determination as to the children’s best interests so as to render a hearing unnecessary on the issue of the father’s visitation. Matter of Bell v Mays, 2015 NY Slip Op 03524, 2nd Dept 4-29-15

 

You might also like
IN THIS DISPUTE BETWEEN PLAINTIFF BEER DISTRIBUTORS AND DEFENDANT BEER COMPANY, THE SECOND DEPARTMENT HELD THAT ALCOHOLIC BEVERAGE CONTROL ACT SECTION 55-C(4), WHICH PROHIBITS TERMINATION OF A DISTRIBUTION AGREEMENT WITHOUT GOOD CAUSE AND AN OPPORTUNITY TO CURE, APPLIES TO BOTH WRITTEN AND ORAL CONTRACTS; THE COURT WENT ON TO FIND THAT THE COMPLAINT, WHICH WAS BASED ON AN ORAL DISTRIBUTION AGREEMENT, DID NOT STATE A CAUSE OF ACTION FOR BREACH OF SECTION 55-C(4) (SECOND DEPT).
QUESTION OF FACT WHETHER DEFENDANT VIOLATED VEHICLE AND TRAFFIC LAW 1141 BY MAKING A LEFT TURN IN FRONT OF PLAINTIFF’S VEHICLE, DEFENDANT AVERRED PLAINTIFF WAS DRIVING TOO FAST, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF BANK FAILED INCLUDE REFERENCED DOCUMENTS WITH ITS MOTION PAPERS AND THEREBY DID NOT DEMONSTRATE DEFENDANTS’ DEFAULT OR PLAINTIFF’S STANDING IN THIS FORECLOSURE ACTION (SECOND DEPT).
FOUNDATION FOR OPINION EVIDENCE OUTSIDE PLAINTIFF’S EXPERT’S FIELD WAS NOT LAID, DEFENDANT SURGEON’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
Substitution of Candidate Invalid
ALTHOUGH PLAINTIFF’S COUNSEL SENT A LETTER TO THE INSURED SHORTLY AFTER PLAINTIFF WAS INJURED IN THE INSURED’S HOME REQUESTING THAT THE INSURED NOTIFY HER INSURER, THE INSURER WAS NOT NOTIFIED UNTIL IT RECEIVED THE SUMMONS AND COMPLAINT SIX MONTHS AFTER THE INCIDENT; THE INSURER PROPERLY DISCLAIMED COVERAGE ON THE GROUND IT HAD NOT BEEN TIMELY NOTIFIED (SECOND DEPT).
ALTHOUGH PLAINTIFF HERSELF MAY NOT HAVE BEEN ABLE TO IDENTIFY THE CAUSE OF HER SLIP AND FALL, HER DAUGHTER, WHO WITNESSED THE FALL, PROVIDED SUFFICIENT EVIDENCE TO WARRANT DENIAL OF DEFENDANT’S SUMMARY JUDGMENT MOTION (SECOND DEPT).
THE FACT THAT A CONTRACT DESCRIBES A PARTY AS AN INDEPENDENT CONTRACTOR IS NOT NECESSARILY DISPOSITIVE; DESPITE THE WORDING OF THE CONTRACT, THE COMPLAINT HERE STATED A CAUSE OF ACTION BASED UPON AN EMPLOYER-EMPLOYEE RELATIONSHIP (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Third-Party Beneficiary of an Indemnification Agreement May Enforce Obligations... Family Court Did Not Follow Statutory Procedure Before Ruling the New York Court...