| Matter of Dantzler v McKane |
| 2008 NY Slip Op 01475 [48 AD3d 937] |
| February 21, 2008 |
| Appellate Division, Third Department |
| In the Matter of Eric Dantzler, Appellant, v Traci McKane,Respondent. |
—[*1] F. Daniel Casella, Law Guardian, Binghamton.
Spain, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered June 1, 2007, which partially granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for modification of a prior order of custody and visitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother), now divorced, arethe parents of three children (born in 1995, 1998 and 2000). In 2004, after their separation, themother was awarded sole custody; the father was granted supervised visitation at the local familyand children's agency due to his heroin addiction and physical aggression toward the mother inthe presence of the children. The father, who never once exercised his right to supervisedvisitation, was incarcerated in November 2006 in the local county jail and petitioned in March2007 for modification of the prior custody and visitation order seeking visitation with thechildren in jail.[FN1] Following a hearing at which the parties appeared pro se[FN2]and testified and [*2]the children's Law Guardian advocatedagainst visitation, Family Court denied the father's request, but permitted mail contact screenedby the mother and yearly photographs. The father now appeals.
While "the incarceration of a parent is not sufficient in and of itself to overcome thepresumption favoring . . . child[ren's] visitation with a noncustodial parent"(Matter of Bowers v Bowers, 266 AD2d 741, 742 [1999]), "a denial of an application forvisitation is proper where evidence demonstrates that visitation would not be in the child[ren's]best interest" (Matter of Ellett v Ellett, 265 AD2d 747, 747 [1999]; accord Matter of Conklin v Hernandez,41 AD3d 908, 910 [2007]). Here, aside from brief chance encounters with the children inpublic, the father had no contact with them—and thus no meaningfulrelationship—for over two years preceding his incarceration, having never exercised hisopportunity for supervised visitation (see Matter of Conklin v Hernandez, supra;Matter of Bougor v Murray, 283 AD2d 695, 695 [2001]). He testified that his failure toexercise visitation with the children was due to his lack of money and opposition to paying anominal fee to the supervising agency to see his children, but never sought to modify the order tosubstitute the approved supervisor as suggested by the court in its order. The father had no plan,resources or information about how or when visitation would occur, leaving it entirely to themother to accomplish. The mother, a single parent and sole support of the children, works fulltime and opposed the request, expressing misgivings about requiring the children to visit theirfather in jail or compelling her to transport and accompany them. Given the history of domesticviolence and the father's threats to kill her, as well as the practical difficulties, the mother'sopposition was justifiable (see Matter of Conklin v Hernandez, 41 AD3d at 910-911;Matter of Bougor v Murray, 283 AD2d at 695). Under all of the circumstances, FamilyCourt's determination that the requested visitation was not in the children's best interestsconstituted an appropriate exercise of discretion, has a sound basis in the record, and will not bedisturbed (see Matter of Conklin v Hernandez, 41 AD3d at 910-911; cf. Matter of Albanese v Albanese, 44AD3d 1117, 1120 [2007]).
Cardona, P.J., Mercure, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Notably, the father's counseladvised Family Court at oral argument that he is currently incarcerated in the state prison systemin Franklin County, a distance of 250 miles from the children's residence. While thecircumstances underlying the petition no longer exist, we will review Family Court's ruling onthe petition under the facts presented at that time.
Footnote 2: Although the mother has notsubmitted a brief on this appeal, we again take the opportunity to emphasize that the mother, as arespondent in a disputed visitation proceeding, should have been advised when she first appearedbefore Family Court of the right to counsel, the right to seek an adjournment to confer withcounsel and the right to assigned counsel if qualified (see Family Ct Act § 262 [a][iii]; see also Matter of Edwards vCade, 33 AD3d 1087, 1089 [2006]; Matter of Wilson v Bennett, 282 AD2d 933,934 [2001]). The court's failure to so advise her of these important rights was error.