| Matter of Culver v Culver |
| 2011 NY Slip Op 01545 [82 AD3d 1296] |
| March 3, 2011 |
| Appellate Division, Third Department |
| In the Matter of Christopher Culver, Respondent, v KristiVanPatten Culver, Appellant. |
—[*1] Justin C. Brusgul, Voorheesville, for respondent. G. Scott Walling, Queensbury, attorney for the child.
Spain, J. Appeal from an order of the Family Court of Saratoga County (Hall, J.), enteredSeptember 10, 2009, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, for visitation with the parties' child.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of adaughter born in 2005. In February 2007, the father, an elementary school teacher, was arrestedand charged in a 49-count indictment with sexually molesting a number of boys in his class. InMarch 2007, the father signed a separation agreement which made no provision for custody orvisitation of the child, who continued to reside with the mother. Thereafter, while the motherinitially permitted the father to visit with the child, in July 2007—when the child was 18months old—she refused the father any further visitation. The father pleaded guilty to theentire indictment and was sentenced in January 2008 to an agreed-upon aggregate prisonsentence of 12 years. On his appeal, this Court affirmed the conviction (People v Culver, 69 AD3d 976[2010]).
The parties were divorced in August 2008 in a judgment which incorporated their separationagreement. In November 2008, the father filed a petition in Family Court seeking regularvisitation with the child at the place of his incarceration, a correctional facility in Clinton County,located about three hours by car from the child's residence. Included in the father's petition wereaffidavits from his parents and his sister offering to provide transportation to and [*2]supervision during the requested visits.
After four days of trial at which numerous witnesses testified, Family Court awarded themother full custody and granted the father four visits per year with the child at the correctionalfacility where he is confined or such other facility provided it is within 150 miles of the mother'sresidence. The court further ordered, among other things, that the child be accompanied by aresponsible adult—other than the mother—with whom the child is familiar and whowill cooperate with the mother and father in effectuating each visit, that the child and her escortsengage in counseling in preparation for and subsequent to each visit, and that the father havemonitored telephone contact and written communication with the child. The mother was directedto bear the cost of said counseling and telephone calls.[FN1]The mother now appeals.
"[T]he best interests of children generally lie with a meaningful relationship with bothparents" (Tait v Tait, 44 AD3d1142, 1143 [2007]) and "[v]isitation with a noncustodial parent is presumed to be in a child'sbest interests even when the parent is incarcerated" (Matter of Chambers v Renaud, 72 AD3d 1433, 1434 [2010]; see Matter of Garraway v Laforet, 68AD3d 1192, 1193 [2009]). "A court should not base a denial of visitation on the strongopposition of the custodial parent" (Matter of Buffin v Mosley, 263 AD2d 962, 962[1999]); "[s]ubstantial proof that such visitation would be harmful to the child will, however,justify the denial of an application for visitation" (Matter of Davis v Davis, 232 AD2d773, 773 [1996]). The totality of the circumstances must be considered in determining such anapplication (see Matter of Garraway v Laforet, 68 AD3d at 1194), including the distancethe child would have to travel in order to effectuate visitation (see id.). "The propriety ofvisitation is left to the sound discretion of Family Court and its findings, guided by the bestinterests of the child, will not be disturbed unless they lack a sound basis in the record" (Matter of Moore v Schill, 44 AD3d1123, 1123 [2007] [citations omitted]).
Here, the mother opposes visitation asserting, among other reasons, that the child does notknow her father, does not enjoy long car rides and that such visitation will likely frighten thechild. The mother testified, however, that, prior to the father's arrest, he enjoyed "[a] decentfather-daughter relationship"—a fact corroborated by the testimony of others who haveknown the father and child—and that, since the father's incarceration, the child has begunto inquire about his whereabouts. To the mother's credit, the child has received mail from thefather on a regular basis, and both the child's paternal aunt and paternalgrandparents—who have been permitted ongoing relationships with the child by themother—are willing to transport the child to the correctional facility and cooperate withthe mother's related wishes—e.g., to not discuss the specific circumstances surrounding thefather's incarceration and to attend counseling in order to facilitate the visits. The father testifiedthat, prior to his arrest, he was very involved in the child's life and that, if granted visitation, hewould abide by any limitations the mother imposes with respect to the content of theconversations between himself and the child—e.g., excluding any discussion of hisconviction and guilt or innocence. The record further reflects that a number of accommodationsare made at the prison to make children who visit their parents more comfortable during visits.[*3]
The key objective evidence presented came in the form ofconflicting opinions of experts, each of whom met with the mother and the child. Family Courtfound "persuasive and reasoned" the report and testimony of Jerold Grodin, a licensedpsychologist with significant experience in the field of child psychology, who testified for thefather. Grodin opined that visitation with the father, even at his correctional facility, would be"healthful and safe" and in the child's best interests because the child seems to be comfortable innew situations and is quite inquisitive, and also because of the inherent need for any child tomaintain contact with both parents. His interaction with the child also revealed a bond betweenthe child and father and a desire on the part of the child to contact the father. Grodin discussedhow children who are separated from their parents, without a clear understanding, tend todevelop feelings of abandonment. Grodin further concluded that visitation would not betraumatic for the child and that it could be facilitated by therapeutic counseling. Steven Wood, alicensed mental health counselor and clinical specialist with significant experience in child andadolescent therapy testified for the mother and disagreed. Specifically, Wood asserted thatbecause the child is beginning to reach the age at which she will begin forming substantivememories, visiting her father in prison may damage her future relationship with him. In Wood'sopinion, the child does not have sufficient life experience to be able to go through the process ofvisiting a maximum security prison. Wood also concluded that, while the individual processesthe child would have to go through to visit the father would not—in themselves—betraumatic, the cumulative effect of such an experience would be. Yet, Wood also concluded thatthe child was stable, did not demonstrate an increased vulnerability to social trauma and did notexpress a fear of her father and that, although the child did not feel abandoned by her father, anychild who had a parent disappear could develop a feeling of abandonment.
While the child has not seen her father since she was 18 months old,[FN2]there is clearly an established relationship between the child and the father as evidenced by thechild's own behavior. Indeed, it cannot be said that the father is "essentially a stranger to thechild" (Matter of Cole v Comfort,63 AD3d 1234, 1236 [2009], lv denied 13 NY3d 706 [2009]). That the child isyoung and will likely need to travel a considerable distance between her residence and thefather's prison does not necessarily preclude visitation (see Matter of Moore v Schill, 44AD3d at 1123). Importantly, Family Court identified several trustworthy people known to themother and the child, as opposed to "virtual strangers," who are willing to accept thisresponsibility (Matter of Goldsmith vGoldsmith, 68 AD3d 1209, 1210 [2009]; see Matter of Conklin v Hernandez, 41 AD3d 908, 911 [2007]),thereby making visitation "viable and workable" (Matter of Albanese v Albanese, 44 AD3d 1117, 1120 [2007]), andthe father will never be alone with the child. While the father's prison term is long and theoffenses for which he is incarcerated are undeniably disturbing—and visitation will likelynot be easy—we cannot say that Family Court's discretionary conclusion is unsound.
We do, however, agree with the mother's contention that she should not be required to payfor the telephone calls and the counseling for the child and her escorts before and after the visits.While the record on appeal is barren of any evidence of the parties' financial circumstances or ofthe mother's financial ability to pay for these potentially costly and long-term [*4]expenses, at the time that the mother applied for the stay of FamilyCourt's order, she reported—in an affidavit to this Court—that she was a singlemother with a very modest income as a church pastor, received no child support, relied on hermother for financial assistance and had no health insurance to cover counseling expenses for thechild (and any insurance she might obtain would not cover the father's family members). Underthese circumstances, requiring the mother to pay for the father's visitation-related expenses woulddeplete the resources available to the child. It is the father who should bear the responsibility (orpursue third-party or family assistance) to pay all expenses associated with visitation, includingcounseling[FN3]and telephone calls, all of which are necessitated by his incarceration (see e.g. Matter of Franklin v Richey, 57AD3d 663, 664-665 [2008]; Matter of Albanese v Albanese, 44 AD3d at 1120;Matter of Moore v Schill, 44 AD3d at 1123).
Malone Jr. and Stein, JJ., concur.
Peters, J.P. (dissenting). We respectfully dissent. The parties' daughter was born in 2005.Before she was even conceived, petitioner (hereinafter the father) began molesting students in hiselementary school. A teacher, he chose his own students to victimize.
When his daughter was 14 months of age, the father was arrested and charged in a 49-countindictment with sexually molesting eight boys under the age of 11. Shortly thereafter, he signed aseparation agreement which made no provision for custody or visitation. After pleading guilty tothe entire indictment, he was sentenced, in January 2008, to an aggregate sentence of 12 years inprison. After sentencing, but before this Court affirmed his conviction (People v Culver, 69 AD3d 976[2010]), he filed a petition in Family Court seeking visitation at the facility where he wasincarcerated. At the time his petition was filed, he had not seen the child for over one year.
Despite the fact that this father's reprehensible conduct toward children—who hadbeen placed in his trust—had torn her family asunder, respondent (hereinafter the mother)fostered a positive relationship between her daughter and the child's paternal relatives. She alsopermitted correspondence between the father and the child.
Prior to the fact-finding hearing concerning visitation, the child and her mother wereevaluated by experts who rendered conflicting opinions at trial. Significantly, neither expertevaluated the father. While a visit to the institution of his incarceration for such purpose mayhave been challenging, it strikes us as disingenuous for an expert to opine that visitation with aconvicted sex offender in a maximum security prison setting serves the best interests of an infantwithout conducting even a perfunctory assessment of that offender.[*5]
The majority opines that "[w]hile the child has not seenher father since she was 18 months old, there is clearly an established relationship between thechild and the father." During the time this "relationship" was forming, the father was sexuallyabusing young boys in his classroom. A "relationship" may have existed, but one cannotconclude that it was a healthy parent-child relationship. Moreover, at the time of the fact-findinghearing, the father had not engaged in sex offender treatment. Strikingly, in testifying at thehearing, he refused to acknowledge his criminal conduct and declined any need for sex offendertreatment, instead asserting that he had been "railroaded."
It is against this backdrop that relevant law should be applied. To be sure, visitation with anoncustodial parent is presumed to be in a child's best interests (see Matter of Chambers v Renaud, 72AD3d 1433, 1434 [2010]). And, while "the incarceration of a noncustodial parent shall not,by itself, preclude visitation with his or her child, a denial of an application for visitation isproper where evidence demonstrates that visitation would not be in the child's best interest[s]"(Matter of Conklin v Hernandez, 41AD3d 908, 910 [2007] [internal quotation marks and citations omitted]; see Matter of Morelli v Tucker, 48AD3d 919, 920 [2008], lv denied 10 NY3d 709 [2008]). Moreover, if Family Courthas exercised its sound discretion in assessing best interests, its findings will not be disturbedunless lacking a sound and substantial basis in the record (see Matter of Cole v Comfort, 63 AD3d 1234, 1235 [2009], lvdenied 13 NY3d 706 [2009]). Yet, we are unable to glean sound discretion from FamilyCourt's decision or substantial support for its findings as to the propriety of visitation. In fact,consideration of the relevant factors leads us to the inescapable conclusion that visitation underthese circumstances would not serve the child's best interests.
The father's crimes are serious, were committed against young children who had been placedin his trust, and have resulted in a lengthy sentence. The record is bereft of any evidence that heattempted to receive treatment for his urges and conduct prior to his arrest or incarceration, orthereafter. Thus, as stated by the mother's counsel at the fact-finding hearing, the father is a"convicted, unrepentant, untreated pederast." He committed these serious acts prior to and duringhis "relationship" with his child and has not seen her since she was 18 months old. While thechild has been described as well adjusted, the full credit for this result must be granted to themother, for we cannot conclude that a father who leaves the home he shares with his infantdaughter in the morning to molest his students during the school day could properly have ahealthy emotional relationship with this child.
Given this father's lengthy prison sentence, the horrific nature of the underlying sex offenses,his refusal to acknowledge his conduct or his need for sex abuse counseling, the distance thechild would have to travel to exercise visitation in a maximum security prison setting, and thefact that more than three years have now elapsed since he has seen the child, we find lacking anysound and substantial basis in this record for Family Court's conclusion that future visitationwould serve the child's best interests (see Matter of Gutkaiss v Leahy, 285 AD2d 752,753 [2001]; Matter of Rogowski v Rogowski, 251 AD2d 827, 827-828 [1998];Matter of Hadsell v Hadsell, 249 AD2d 853, 854 [1998], lv denied 92 NY2d 809[1998]; see also Matter of Jasmin E.R., 303 AD2d 1034, 1035 [2003]). That FamilyCourt could further reward the father by requiring that the mother pay the cost of counseling toprepare her daughter for prison visits truly adds insult to injury. For these reasons, we wouldreverse Family Court's order and permit weekly monitored letters to the child and monthlymonitored telephone calls with all costs to be borne by the father.[*6]
Egan Jr., J., concurs. Ordered that the order is modified,on the facts, without costs, by reversing so much thereof as holds respondent financiallyresponsible for all expenses associated with visitation including, but not limited to, counselingand telephone expenses, unless she has since obtained or in the future acquires health insurancecovering such counseling expenses, in which case the mother shall utilize that coverage, and, asso modified, affirmed.
Footnote 1: A stay of Family Court's orderpending this appeal was issued by this Court and has been in effect since October 2, 2009.
Footnote 2: Almost a year and a half of thisperiod of time is attributable to this Court's stay of Family Court's order.
Footnote 3: If the mother has sinceobtained—or in the future acquires—health insurance covering counseling expensesfor the child, the mother must utilize that coverage to its fullest extent, with the father remainingresponsible for any non-covered expenses.