SMITH, GERALD v. STEWART, TONYA ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1124
CAF 15-02024
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ.
IN THE MATTER OF GERALD SMITH,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
TONYA STEWART, RESPONDENT-RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR PETITIONER-APPELLANT.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-RESPONDENT.
TANYA J. CONLEY, ATTORNEY FOR THE CHILD, ROCHESTER.
Appeal from an order of the Family Court, Monroe County (Julie
Anne Gordon, R.), entered May 1, 2015 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, denied
petitioner’s request for visitation with the subject child at a
correctional facility.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act
article 6, petitioner father appeals from an order that, inter alia,
denied without prejudice his request for in-person visitation with the
subject child at the correctional facility in which he is currently
incarcerated. Contrary to petitioner’s contention, we conclude that
“a sound and substantial basis exist[s] in the record for the
[Referee]’s determination that the visitation requested by petitioner
would not be in the . . . child’s best interest[s] under the present
circumstances” (Matter of Ellett v Ellett, 265 AD2d 747, 748).
It is well settled that “visitation decisions are generally left
to Family Court’s sound discretion, requiring reversal only where the
decision lacks a sound and substantial basis in the record” (Matter of
Helles v Helles, 87 AD3d 1273, 1273 [internal quotation marks
omitted]; see Matter of Rulinsky v West, 107 AD3d 1507, 1509).
Furthermore, “ ‘[i]t is generally presumed to be in a child’s best
interest[s] to have visitation with his or her noncustodial parent[,]
and the fact that a parent is incarcerated will not, by itself, render
visitation inappropriate’ ” (Matter of Thomas v Thomas, 277 AD2d 935,
935; see Matter of Cierra L.B. v Richard L.R., 43 AD3d 1416,
1416-1417). Nevertheless, “where, as here, domestic violence is
-2- 1124
CAF 15-02024
alleged, ‘the [Referee] must consider the effect of such domestic
violence upon the best interests of the child’ ” (Matter of Moreno v
Cruz, 24 AD3d 780, 781, lv denied 6 NY3d 712, quoting Domestic
Relations Law § 240 [1]; see Matter of Chilbert v Soler, 77 AD3d 1405,
1406, lv denied 16 NY3d 701). Furthermore, petitioner presented no
plan to accomplish the requested visitation, and the record
establishes that none of his friends or family members have offered to
facilitate transportation of the child (cf. Matter of Granger v
Misercola, 96 AD3d 1694, 1695, affd 21 NY3d 86). In addition, the
record supports the Referee’s determination that respondent does not
have a driver’s license or the financial resources to provide
transportation for the child. Consequently, we conclude that a sound
and substantial basis in “[t]he record supports the [Referee]’s
conclusion that petitioner had no reasonable, feasible plan to
facilitate the requested visitation and that compelling [respondent]
to undertake the travel arrangements and have contact with petitioner
was not reasonable or appropriate. Notably, the denial was not
premised merely on an arbitrary opposition to visitation or its cost
and inconvenience . . . but, rather, on the unavailability of any
appropriate arrangement to accomplish physical visitation under the[]
circumstances” (Matter of Conklin v Hernandez, 41 AD3d 908, 911; see
Matter of Anthony MM. v Rena LL., 34 AD3d 1171, 1172, lv denied 8 NY3d
805).
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court