Marmolejo v. Calabrese

Nov 10, 2005
Versions:23 A.D.3d 1122
805 N.Y.S.2d 752

Appeal from an order of the Family Court, Erie County (Paul G. Buchanan, J.), entered August 19, 2004 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition for visitation.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner contends that Family Court erred in dismissing his petition seeking visitation with his daughter without conducting a hearing to determine whether visitation is in his daughter‘s best interests. We reject that contention. Petitioner was incarcerated shortly before his daughter‘s birth in 1993 and has never seen his daughter. In addition, he admitted in an affidavit that he will be deported upon his release from prison. An evidentiary hearing was not required herein because “it is clear from the record that the court ‘possessed sufficient information to render an informed determination that was consistent with the child‘s best interests’ ” (Matter of Bogdan v Bogdan, 291 AD2d 909, 909 [2002], quoting Matter of Vangas v Ladas, 259 AD2d 755, 755 [1999]; see Matter of Oliver S. v Chemung County Dept. of Social Servs., 162 AD2d 820, 821-822 [1990]), particularly in view of the lengthy period of petitioner‘s incarceration (see Matter of Gutkaiss v Leahy, 285 AD2d 752 [2001]; Matter of Bougor v Murray, 283 AD2d 695 [2001]), the “virtually nonexistent previous relationship” of petitioner with his daughter (Matter of Ellett v Ellett, 265 AD2d 747, 748 [1999]; see Gutkaiss, 285 AD2d at 753), and the fact that petitioner will be deported upon his release from prison.

Present—Kehoe, J.P., Martoche, Pine, Lawton and Hayes, JJ.