IN RE: John W. FOLSOM

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

IN RE: John W. FOLSOM, Appellant, v. Khalida FOLSOM, Respondent.

Decided: June 24, 1999

Before:  MIKOLL, J.P., MERCURE, PETERS, CARPINELLO and GRAFFEO, JJ. Lauren S. Cohen, Endicott, for appellant.

Appeal from an order of the Family Court of Chemung County (Buckley, J.), entered April 1, 1998, which dismissed petitioner's application, in a proceeding pursuant to Family Court Act article 6, seeking visitation with his children.

Petitioner, an inmate at the Elmira Correctional Facility in Chemung County, commenced this proceeding to obtain visitation with his two children, ages nine and five, after their mother stopped bringing them to the facility for visitation.   In petitioner's absence, and without appointing a Law Guardian, Family Court conducted a brief colloquy with respondent, during which she described the criminal conduct that resulted in petitioner's incarceration and claimed that she had encountered problems with petitioner during the course of prior visitations.   Based upon respondent's unsworn allegations, the court dismissed the petition.   Petitioner appeals.

 Although petitioner is incarcerated, “visitation will only be denied where there is substantial evidence that it would be detrimental to the child[ren]'s welfare” (Matter of Vann v. Vann, 187 A.D.2d 821, 821, 589 N.Y.S.2d 715;  see, Matter of Davis v. Davis, 232 A.D.2d 773, 648 N.Y.S.2d 742).  “A determination of the children's best interests should only be made after a full evidentiary hearing unless there is sufficient information before the court to enable it to undertake an independent comprehensive review of the children's best interests * * * ” (Matter of Kenneth H v. Barbara G, 256 A.D.2d 1029, 1029, 682 N.Y.S.2d 699, 700 [citations omitted] ).   The record in this case contains no sworn testimony or documentary evidence, and petitioner was not given an opportunity to present evidence, participate by phone or otherwise respond to respondent's allegations.   In these circumstances, the order must be reversed and the matter remitted to Family Court for the required independent comprehensive review of the children's best interests (compare, id.;   Matter of Vann v Vann, supra, with Matter of Rogowski v. Rogowski, 251 A.D.2d 827, 674 N.Y.S.2d 480;  Matter of Hadsell v. Hadsell, 249 A.D.2d 853, 672 N.Y.S.2d 478, lv. denied 92 N.Y.2d 809, 680 N.Y.S.2d 54, 702 N.E.2d 839).   We are also of the view that this is an appropriate case for the appointment of a Law Guardian to protect the rights of the children who are the subject of petitioner's application (see, Family Ct. Act § 249[a] ).

ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Chemung County for further proceedings not inconsistent with this court's decision.

MERCURE, J.

MIKOLL, J.P., PETERS, CARPINELLO and GRAFFEO, JJ., concur.

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