JEFFREY v. JULIE (2006)

 Petitioner appeals from an order of Family Court that modified a prior visitation order by, inter alia, providing that, during any period in which petitioner is incarcerated, visitation between petitioner and his child shall occur at the request of the child.   We agree with petitioner that the court erred in providing for visitation based upon the request of the child (see Matter of Iadicicco v. Iadicicco, 270 A.D.2d 721, 722, 704 N.Y.S.2d 377;  Matter of Vanderhoff v. Vanderhoff, 207 A.D.2d 494, 495, 615 N.Y.S.2d 919;  see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 172-173, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  People ex rel. James HH v. Ethel HH, 49 A.D.2d 130, 133, 373 N.Y.S.2d 668).   Because that provision of the order provides for visitation during any future periods of incarceration of petitioner, we modify the order by vacating that provision, and we remit the matter to Family Court for a new hearing to determine whether such visitation is in the best interests of the child and, if so, to fashion an appropriate visitation schedule (see generally Matter of Crowell v. Livziey, 20 A.D.3d 923, 923-924, 798 N.Y.S.2d 279).   Petitioner concedes that his contention concerning the child's last name is not preserved for our review, and we decline to address it in the interest of justice.   Finally, in light of our determination, we see no need to address petitioner's remaining contention.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the second ordering paragraph and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Monroe County, for a new hearing.

MEMORANDUM: