Citation Numbers: 251 A.D.2d 827, 674 N.Y.S.2d 480, 1998 N.Y. App. Div. LEXIS 7343
Judges: Cardona
Filed Date: 6/18/1998
Status: Precedential
Modified Date: 11/1/2024
Appeal from an order of the Family Court of Schenectady County (Reilly, Jr., J.), entered September 18, 1997, which, inter alia, dismissed petitioner’s application, in a proceeding pursuant to Family Court Act article 6, for visitation with the parties’ child.
Petitioner has been incarcerated at Dannemora Correctional Facility in Clinton County since July 1994 and is serving an 8Vs to 25-year sentence upon his conviction of two counts of rape in the first degree and one count of endangering the welfare of a child. He and respondent have one child, a daughter, born in 1992. In June 1996, petitioner made this application for visitation with the child at the correctional facility. A hearing was held and, at the close of petitioner’s proof, Family Court granted respondent’s motion to dismiss the petition. Petitioner appeals.
As with custody determinations, the primary consideration in deciding the issue of visitation is the best interest of the child (see, Matter of Rhynes v Rhynes, 242 AD2d 943; Matter of Simpson v Finnigan, 202 AD2d 592, 593). We further recognize the presumption favoring a child’s visitation with a noncustodial parent, even when that parent is incarcerated (see, Matter of Davis v Davis, 232 AD2d 773; Matter of Mohammed v Cortland County Dept. of Social Servs., 186 AD2d 908, lv denied 81 NY2d 706). Although Family Court did not correctly recite the law on the burden of proof, we nevertheless find that there is sufficient proof in this record to rebut the presumption and establish that visitation would not be in the child’s best interest (see, Matter of Simpson v Finnigan, supra, at 593; Matter of Mohammed v Cortland County Dept. of Social Servs., supra, at 908-909).
It is significant that the crimes for which petitioner is cur
In view of the above, we decline to disturb that portion of Family Court’s order denying visitation at this time (see, Ceasar A. R. v Raquel D., 179 AD2d 574). We do, however, find unduly restrictive that portion of Family Court’s order which conditions future visitation on the Law Guardian’s assessment of the child’s need for contact with petitioner. Therefore, we modify Family Court’s order to the extent of directing that petitioner may file a new application for visitation as future circumstances dictate and also direct that, until further order of Family Court, petitioner shall be permitted to send birthday/ holiday cards to the child through the Law Guardian.
Crew III, White, Yesawich Jr. and Graffeo, JJ., concur. Ordered that the order is modified, on the law and the facts, without costs, by directing that petitioner may file a new application for visitation as future circumstances dictate and that petitioner may be permitted to send birthday/holiday cards to the child through the Law Guardian; and, as so modified, affirmed.