Matter of Jeffrey T. v Julie B.

Matter of Jeffrey T. v Julie B. 2006 NY Slip Op 09824 [35 AD3d 1222] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 26, 2007

In the Matter of Jeffrey T., Appellant, v Julie B., Respondent.

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Appeal from an order of the Family Court, Monroe County (John J. Rivoli, J.), entered December 19, 2005 in a proceeding pursuant to Family Court Act article 6. The order modified a prior visitation order.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the second ordering paragraph and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Monroe County, for a new hearing in accordance with the following memorandum: Petitioner appeals from an order of Family Court that modified a prior visitation order by, inter alia, providing that, during any period in which petitioner is incarcerated, visitation between petitioner and his child shall occur at the request of the child. We agree with petitioner that the court erred in providing for visitation based upon the request of the child (see Matter of Iadicicco v Iadicicco, 270 AD2d 721, 722 [2000]; Matter of Vanderhoff v Vanderhoff, 207 AD2d 494, 495 [1994]; see generally Eschbach v Eschbach, 56 NY2d 167, 172-173 [1982]; People ex rel. James "HH" v Ethel "HH", 49 AD2d 130, 133 [1975]). Because that provision of the order provides for visitation during any future periods of incarceration of petitioner, we modify the order by vacating that provision, and we remit the matter to Family Court for a new hearing to determine whether such visitation is in the best interests of the child and, if so, to fashion an appropriate visitation schedule (see generally Matter of Crowell v Livziey, 20 AD3d 923, 923-924 [2005]). Petitioner concedes that his contention concerning the child's last name is not preserved for our review, and we decline to address it in the interest of justice. Finally, in light of our determination, we see no need to address petitioner's remaining contention. Present—Scudder, P.J., Hurlbutt, Gorski and Martoche, JJ.