IN RE: STEVEN M.

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: STEVEN M., Petitioner-Appellant, v. MEGHAN M., Respondent-Respondent.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., MARTOCHE, SMITH, LUNN, AND PERADOTTO, JJ. Davison Law Office, Webster (Mary P. Davison of Counsel), for Petitioner-Appellant. Anne S. Galbraith, Law Guardian, Canandaigua, for Dominique M.

 Petitioner, who is incarcerated based on his conviction of manslaughter in the second degree (Penal Law § 125.15[1] ) for recklessly causing the death of respondent's son, commenced this proceeding seeking visitation with the parties' child.   We agree with petitioner that Family Court erred in “denying and dismissing” the petition.   Petitioner was convicted of manslaughter upon his plea of guilty, and the record is devoid of information concerning the circumstances of the death of respondent's son.   Such information is relevant to the issue whether petitioner poses any risk to his child and thus to whether visitation is appropriate.   The record also is devoid of any evidence concerning the effect of visitation in a correctional facility on the psychological health of the child.   Thus, the record does not contain sufficient evidence to determine whether visitation would be detrimental to the child's welfare (see Matter of Crowell v. Livziey, 20 A.D.3d 923, 798 N.Y.S.2d 279;  Matter of Rhynes v. Rhynes, 242 A.D.2d 943, 662 N.Y.S.2d 667).   We note in addition that the court recited as an independent basis for denying the petition the financial circumstances of respondent, upon whom the court did not wish to impose the obligation of transporting the child for visitation.   It is well settled, however, that denial of visitation to an incarcerated parent should not be based solely on the cost and inconvenience to the custodial parent (see Matter of Buffin v. Mosley, 263 A.D.2d 962, 695 N.Y.S.2d 442;  see also Rhynes, 242 A.D.2d at 944, 662 N.Y.S.2d 667).

We therefore reverse the order, reinstate the petition, and remit the matter to Family Court for a new hearing to determine whether visitation is in the child's best interests (see Crowell, 20 A.D.3d at 924, 798 N.Y.S.2d 279;  Matter of Reczko v. Reczko, 278 A.D.2d 876, 876-877, 718 N.Y.S.2d 511;  Matter of Thomas v. Thomas, 277 A.D.2d 935, 715 N.Y.S.2d 818;  Buffin, 263 A.D.2d at 963, 695 N.Y.S.2d 442).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the petition is reinstated, and the matter is remitted to Family Court, Seneca County.

MEMORANDUM: