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Vaughn v. Lambert

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


February 11, 2010

IN THE MATTER OF CHARLES N. VAUGHN, APPELLANT,
v.
EARNESTINE LAMBERT, RESPONDENT.

Appeal from an order of the Family Court, Onondaga County (George M. Raus, Jr., R.), entered November 17, 2008 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition seeking visitation.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 31, 2010

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Onondaga County, for further proceedings on the petition.

Memorandum

Petitioner father appeals from an order dismissing his petition seeking visitation with his daughter. The father is incarcerated and was not present at the court appearance despite the issuance of an order by the Referee directing that he be transported for the appearance on his petition. The Referee summarily dismissed the petition when, upon asking the father's 15-year-old daughter whether she wanted to see or communicate with her father, the daughter responded in the negative. That was error inasmuch as the Referee did not have " 'sufficient information to make a comprehensive assessment of the best interests of the child[ ]' " (Matter of Placidi v Sleiertin, 61 AD3d 1340, 1341 [2009]; see Matter of Steven M. v Meghan M., 43 AD3d 1349, 1350 [2007]). We therefore reverse the order, reinstate the petition and remit the matter to Family Court for further proceedings on the petition.

Present--Scudder, P.J., Centra, Fahey and Green, JJ.

20100211

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