Wilda C. v. Miguel R. , 947 N.Y.S.2d 467 ( 2012 )

Order, Family Court, New York County (Jody Adams, J.), entered on or about October 5, 2011, which dismissed the petition seeking visitation with prejudice and enjoined petitioner from filing any additional custody and/or visitation petitions regarding the subject child without permission of the court, unanimously reversed, on the law, without costs, the petition reinstated, and the matter remanded for further proceedings consistent herewith.

The Family Court did not dismiss the petition on jurisdictional grounds, but on the merits, and thus, the issue of jurisdiction is not properly before this Court on appeal. While respondent urges that a prior order of the Family Court did rule on the issue and has collateral estoppel effect, the record before this Court is insufficient to make such a determination and the issue should be addressed on remand (see Matter of Richard W. v Maribel G., 78 AD3d 480 [2010]).

It is undisputed that full custody was awarded to respondent in March 2009 (see Matter of Miguel R. v Wilda C., 74 AD3d 631 [2010]). The parties represent that an order of protection was issued the same day directing petitioner to “stay away from [the child] except for court ordered supervised visits after documentation of compliance with mental health treatment,” and the child’s attorney represents that the order of protection was for a period of one year. As there is no indication in the record before this Court that the order of protection was ever extended or that there is any other outstanding order addressing visitation, dismissal of the petition on the grounds that petitioner failed to allege a change in circumstances warranting modification cannot be affirmed. Concur — Gonzalez, P.J., Tom, Andrias, Acosta and Freedman, JJ.