| Matter of Albanese v Albanese |
| 2007 NY Slip Op 07785 [44 AD3d 1117] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of Margaret L. Albanese, Respondent, v AndrewAlbanese, Sr., Appellant. |
—[*1] Pamela A. Ladd, Fonda, for respondent. Albert A. Aaron, Law Guardian, Binghamton.
Spain, J. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredJuly 12, 2006, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 6, for custody of the parties' child.
Petitioner and respondent have been married approximately 20 years and are the parents of ason born in 1997 (hereinafter the child). In early 2004, apparently due to the parents' drug use, thechild was removed by the Chenango County Department of Social Services (hereinafter DSS)from their home and placed in the custody of the child's adult half brother and his wife, FrankAlbanese and Barbara Albanese. Respondent reportedly visited the child daily until hisincarceration in April 2004, upon his arrest and later conviction for criminal possession of stolenproperty, for which a 2 to 6-year sentence was imposed (see People v Albanese, 38 AD3d 1015 [2007], lv denied 8NY3d 981 [2007]). Petitioner reportedly completed drug treatment and parenting servicesrecommended by DSS and, in August 2005, was granted joint custody with the Albaneses, whowere given and have exercised visitation with the child every two weeks, with primary physicalcustody to petitioner. That order is not in the record on appeal.[FN*][*2]
In January 2006, petitioner sought to modify thatcustody/visitation order seeking sole, full custody with continued visitation with the Albaneses,to which they stipulated. Respondent opposed the petition, requesting visitation. After a hearingand by decision and order dated April 12, 2006, Family Court relieved the Albaneses of theirjoint custodial status and directed that custody remain with petitioner pending the hearing onrespondent's opposition to the petition and his request for visitation.
At the June 2006 hearing, only the parties testified. Petitioner sought sole custody;respondent, who remained incarcerated, requested visitation, ultimately waiving his earlierrequest for joint custody. Petitioner testified that her son had lived with her the past year, duringwhich she took him every two weeks to visit the Albaneses. She has not taken the child to visitrespondent, who the child has not seen since his incarceration in April 2004, reportedly due tofinancial constraints and transportation difficulties; she has, however, sent respondent monthlyenvelopes containing the son's cards, pictures, report cards, and the like. She confirmed that,prior to his incarceration, the child had enjoyed a "good" relationship with his father, hinderedonly by respondent's drug use. She is agreeable to the child visiting respondent, provided it isaccomplished by means of free bus transportation that respondent reported was available, to besupervised by his paternal grandmother (or another agreed-upon paternal relative). Petitioner alsoindicated that she would be willing to undertake the trip with the child depending upon the cost,if any, to her.
Respondent testified that he previously enjoyed a close relationship with the child, withwhom he does not want to lose contact, and requested monthly visitation. As his financialresources consist only of $5.80 earned every two weeks in prison, he proposed use of the free busalthough he did not have any detailed information. At the close of the hearing, petitioner'scounsel requested sole custody and did not oppose visitation; respondent's counsel requested"some sort of visitation," and the Law Guardian advocated in favor of sole custody for petitionerand monthly visitation with respondent, with transportation responsibility to alternate monthlybetween the parties' families.
Ruling from the bench, Family Court stated on the record that the limited issue before it wascustody, which was awarded to petitioner, and held that respondent is entitled to "reasonablevisitation as the parties may agree to consist solely of mail visitation," i.e., no in-personvisitation. In its subsequent written order, the court directed that respondent "shall havereasonable visitation . . . as the parties can agree, and in the minimum he shall havemail contact." Respondent now appeals, arguing that he was deprived of a fair trial and shouldhave been awarded in-person visitation, contentions also advocated on appeal by the LawGuardian.[*3]
As an initial matter, we have reviewed the entire recordand do not find that respondent was denied a fair trial by either Family Court's conduct or itsremarks. With that said, we do not condone the frequent and unprovoked intemperate anddenigrating remarks directed at respondent by the court, which were clearly inappropriate andserved only to undermine "public confidence in the integrity, fair-mindedness and impartiality ofthe judiciary" (Matter of Esworthy, 77 NY2d 280, 282 [1991]). Inasmuch as respondenthad an unquestioned, fundamental statutory right to be represented by counsel in theseproceedings (see Family Ct Act § 262 [a]; Matter of Wilson v Bennett, 282AD2d 933, 934-935 [2001]), he should not have been chastised by the court for exercising thatright and "wasting [the court's] time" at the initial hearing.
Turning to the denial of visitation, while respondent did not file a formal petition forvisitation as he was advised he could do, petitioner's modification petition clearly reflected that itrelated to both custody and visitation of the child; respondent at all times appeared in oppositionto that petition, requested visitation and, at the outset of every appearance, it was stated that bothcustody and visitation were in issue. Thus, as all parties were on notice of the foregoing and theissue of in-person visitation was in fact litigated by all, we cannot agree with Family Court'sbench-ruling statement that because only petitioner's "custody petition" was pending, the onlyissue before the court was custody.
Turning to respondent's visitation request, under established principles, "[v]isitation by anoncustodial parent is presumed to be in the child's best interest and should be denied only inexceptional situations, such as where substantial evidence reveals that visitation would bedetrimental to the welfare of the child" (Matter of Frierson v Goldston, 9 AD3d 612, 614 [2004]; see Matter of Conklin v Hernandez, 41AD3d 908, 910 [2007]; Matter ofTanner v Tanner, 35 AD3d 1102, 1103 [2006]). No such proof was adduced here, wherepetitioner's testimony and the child's Law Guardian both supported in-person visitation. Thatpresumption exists despite respondent's incarceration, which should not, by itself, precludevisitation in the absence of any evidence that it would not be in the child's best interests (see Matter of Edward S. v Moon, 7AD3d 834, 836 [2004]; Matter of Ellett v Ellett, 265 AD2d 747, 747 [1999]; seealso Matter of Conklin v Hernandez, 41 AD3d at 910). Despite the parties' limited resourcesand the minimal details offered by respondent regarding his plan to use a reportedly availablefree bus service, the record supports the conclusion that in-person visitation is viable andworkable among these families, and would benefit the child (cf. Matter of Conklin vHernandez, 41 AD3d at 910-911). As such, the court's denial of such unopposed in-personvisitation is " 'lacking a sound basis in the record' " (Matter of Edward S. v Moon, 7AD3d at 836, quoting Matter of Williams v Tillman, 289 AD2d 885, 885 [2001]; cf.Matter of Trombley v Trombley, 301 AD2d 890, 891 [2003]).
Accordingly, this matter is remitted to Family Court for further proceedings, as necessary,before a different judge to establish a permanent visitation order within the court's discretionbased, among other factors, on updated information. In the interim, this Court will issue atemporary order granting respondent (1) in-person visitation with his son every other monthcommencing with November 2007, with respondent bearing the responsibility to make thenecessary arrangements and pay any associated expenses, with the child to be accompanied eitherby petitioner, respondent's mother, or another adult agreed to by petitioner, and (2) monthly mailcommunication between the child and respondent through petitioner.
Mercure, J.P., Peters, Carpinello and Kane, JJ., concur. Ordered that the order is modified,on the law and facts, without costs, by reversing so much thereof as awarded respondentunspecified minimal mail access and denied him in-person access to the child; matter remitted tothe Family Court of Broome County for further proceedings not inconsistent with this Court'sdecision, and, pending said proceedings, respondent is temporarily awarded bimonthly in-personaccess commencing in November 2007 to be arranged by and at the expense of respondent, andmonthly mail communication with the child via petitioner; and, as so modified, affirmed.
Footnote *: Ordinarily, the failure to includethe order sought to be modified in Family Court would result in a finding that an incompleterecord has been submitted (see Matter ofPratt v Anthony, 30 AD3d 708 [2006]). Here, there is no dispute that the August 2005order resulted in petitioner obtaining joint custody with the Albaneses (who also receivedvisitation) and physical custody, and no indication that any award of visitation to respondent wasmade.