        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1272
CAF 11-00221
PRESENT: SCUDDER, P.J., SMITH, GREEN, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF ERIC DIEDRICH,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHELLE VANDERMALLIE, RESPONDENT-RESPONDENT.


CONVERSE & MORELL, LLP, PALMYRA (BRUCE A. ROSEKRANS OF COUNSEL), FOR
PETITIONER-APPELLANT.

ELIZABETH A. SAMMONS, WILLIAMSON, FOR RESPONDENT-RESPONDENT.

DENISE R. MUNSON, ATTORNEY FOR THE CHILD, WALWORTH, FOR AMBER L.V.


     Appeal from an order of the Family Court, Wayne County (Maurice
E. Strobridge, J.H.O.), entered December 22, 2010 in a proceeding
pursuant to Family Court Act article 6. The order dismissed the
petition.

     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, Wayne County,
for further proceedings in accordance with the following Memorandum:
In this proceeding pursuant to Family Court Act article 6, petitioner
father appeals from an order dismissing his petition seeking
visitation with the parties’ child. We agree with the father that
Family Court erred in granting the motion of respondent mother to
dismiss the petition (see generally Matter of Crowell v Livziey, 20
AD3d 923). “It is well settled that visitation with a noncustodial
parent is generally presumed to be in a child’s best interests”
(Matter of Mark C. v Patricia B., 41 AD3d 1317, 1318; see generally
Weiss v Weiss, 52 NY2d 170, 175), and denial of such visitation “ ‘is
a drastic remedy to be employed only where there are compelling
reasons for doing so and substantial evidence that visitation will be
harmful to the child[ ]’s welfare’ ” (Matter of Chapman v Tucker, 74
AD3d 1905, 1906). Here, we conclude that “the court abused its
discretion by denying [the father] visitation with [the] child[ ]
because no evidence was presented to support a conclusion that
visitation with [the father] is detrimental to the child[ ]’s welfare”
(Vasile v Vasile, 116 AD2d 1021, 1021). We therefore reverse the
order, reinstate the petition and remit the matter to Family Court for
                                 -2-                 1272
                                                CAF 11-00221

further proceedings on the petition.




Entered:   December 23, 2011           Frances E. Cafarell
                                       Clerk of the Court
