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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

 

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