| Matter of Russell v Simmons |
| 2011 NY Slip Op 07316 [88 AD3d 1080] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jestin L. Russell, Appellant, v Vanessa D.Simmons, Respondent. |
—[*1] Catherine E. Stuckart, Binghamton, for appellant. Teresa C. Mulliken, Harpersfield, attorney for the children.
Kavanagh, J. Appeal from an order of the Family Court of Broome County (Pines, J.),entered April 27, 2010, which partially granted petitioner's application, in a proceeding pursuantto Family Ct Act article 6, to modify a prior order of visitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents oftwo children (born in 2004 and 2006). In May 2008, the mother was awarded sole custody of thechildren while the father, on probation for a criminal conviction, was given the limited right tovisit with the children two hours each week. The father exercised this right for approximatelythree months, but ceased having any contact with the children for an extended period of timebefore he was incarcerated in July 2009, for violating the terms of his probation. In December2009, while incarcerated, the father commenced this proceeding seeking access to the children'smedical and school records, as well as the right to telephone and correspond with the childrenwhile in prison. Notably, the father did not request that the children visit with him while inprison. The mother argued that the father's application should be dismissed because, in additionto being unstable and irresponsible, he has not provided the children with any financial supportand had no contact with them in the months leading up to his incarceration. After a hearing,Family Court dismissed the father's application, except that it directed that he be permitted to[*2]write the children four times each year.[FN*] The father now appeals and we affirm.
Initially, a change in circumstances has occurred in connection with the father's relationshipwith the children requiring a modification of the existing visitation order (see Matter of Flood v Flood, 63 AD3d1197, 1198 [2009]; Matter of Colev Comfort, 63 AD3d 1234, 1235 [2009], lv denied 13 NY3d 706 [2009]). Thus,the relevant inquiry is whether Family Court's determination placing a limitation on the father'scontact with the children was in their best interests and is supported by a sound and substantialbasis in the record (see Matter ofGarraway v Laforet, 68 AD3d 1192, 1194 [2009]; Matter of Conklin v Hernandez, 41 AD3d 908, 910 [2007]). Therecord confirms that the father, of his own volition, chose not to have any contact with thechildren for a substantial period of time prior to his incarceration and, according to the mother,this decision has had an adverse emotional impact upon them. Under the circumstances, we findthat the court's decision limiting the father's access to the children provides a proper balancebetween the need to protect them from any further emotional harm that might result if he onceagain decides to remove himself from their lives and the father's right to have a limitedopportunity to establish a meaningful relationship with them. Moreover, we agree with FamilyCourt that it is not in the children's best interests that the father be provided with periodic updatesregarding the children's medical history or their academic progress. As a result, Family Court'sorder is in all respects affirmed.
Mercure, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: According to the father, he isscheduled to be released from prison in November 2011 and, at that time, "fully intends to pursuevisitation with his children on release."