IN RE: CHRISTINA M.M. (2008)

Petitioner mother commenced this proceeding seeking, inter alia, to terminate visitation between respondent father and the parties' daughter, who is now 10 years old.   The father is incarcerated based upon his conviction of, inter alia, arson in the first degree.   We agree with the father that Family Court erred in granting the mother's motion for summary judgment on the petition and in terminating visitation without conducting a hearing inasmuch as there was not “sufficient information before the court to enable it to undertake an independent comprehensive review of the child[ ]'s best interests” (Matter of Kenneth H. v. Barbara G., 256 A.D.2d 1029, 1029, 682 N.Y.S.2d 699;  see Matter of Rhynes v. Rhynes, 288 A.D.2d 864, 732 N.Y.S.2d 194).   Indeed, we note that “the record is devoid of information concerning the circumstances of the [arson, and s]uch information is relevant to the issue whether [the father] poses any risk to his child and thus to whether visitation is appropriate” (Matter of Steven M. v. Meghan M., 43 A.D.3d 1349, 1349-1350, 842 N.Y.S.2d 625).   We further note that, although the Law Guardian was present when the parties appeared for argument of the mother's motion for summary judgment, the record does not reflect any advocacy on behalf of the child.   We therefore reverse the order insofar as appealed from, deny petitioner's motion and remit the matter to Family Court for a hearing to determine whether visitation is in the child's best interests (see id. at 1350, 842 N.Y.S.2d 625).

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is denied and the matter is remitted to Family Court, Onondaga County, for a hearing.

MEMORANDUM: