SMITH, GERALD v. STEWART, TONYA ( 2016 )


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  •         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
    

Document Info

Docket Number: CAF 15-02024

Filed Date: 12/23/2016

Precedential Status: Precedential

Modified Date: 12/23/2016