| Matter of Moore v Schill |
| 2007 NY Slip Op 07787 [44 AD3d 1123] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of Johnnie Moore, Appellant, v Tawny M. Schill etal., Respondents. |
—[*1] Tawny M. Schill, Elmira, respondent pro se. Rhonda Klee, Elmira, respondent pro se. Norbert A. Higgins, Law Guardian, Binghamton.
Cardona, P.J. Appeal from an order of the Family Court of Chemung County (Brockway, J.),entered April 20, 2006, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, for visitation with his child.
Petitioner and respondent Rhonda Klee are the biological parents of a child born in 2004.Shortly after birth, the child was placed in the custody of his maternal aunt, respondent TawnyM. Schill, due to the incarceration of both parents. In October 2005, petitioner, incarcerated in afederal prison in Pennsylvania, commenced this proceeding seeking visitation. Following ahearing, Family Court, among other things, awarded petitioner visitation every six monthsprovided that petitioner pay transportation expenses associated therewith as calculated accordingto the state mileage reimbursement rate.[*2]
Initially, we are unpersuaded by petitioner's contentionthat Family Court should have awarded more frequent visitation. The propriety of visitation isleft to the sound discretion of Family Court and its findings, guided by the best interests of thechild, will not be disturbed unless they lack a sound basis in the record (see Matter of Conklin v Hernandez, 41AD3d 908, 910 [2007]; Matter of Simpson v Simrell, 296 AD2d 621 [2002]). Here,Family Court weighed, among other things, the child's young age, as well as the distance andtravel time to the penitentiary. Based upon this record, we find no reason to disturb the court'saward of semiannual visitation. The record also supports the court's decision requiring petitionerto bear the transportation costs of facilitating the visitation, as well as its application of the statemileage rate.
Finally, although petitioner has since been transferred to another prison facility, he did notraise any issue regarding a potential transfer in the current petition and, in any event, any changein circumstance is more appropriately the subject of a modification petition.
Crew III, Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.