| Matter of Flood v Flood |
| 2009 NY Slip Op 04309 [63 AD3d 1197] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Michael P. Flood, Respondent, v Janet F. Flood,Appellant. |
—[*1] Eric R. Gee, Albany, for respondent. William L. Koslosky, Law Guardian, Utica. Theodore J. Stein, Law Guardian, Woodstock.
Kane, J. Appeal from a corrected order of the Family Court of Albany County (Walsh, J.),entered September 7, 2007, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of visitation.
Under the parties' 2005 divorce decree, respondent (hereinafter the mother) was awardedsole legal and physical custody of their two daughters (born in 1996 and 1999). Petitioner(hereinafter the father) was granted telephone access at least once every 60 days and unlimitedcontact by mail. No visitation was awarded, mainly due to the father's incarceration for hisconviction of robbery in the first degree, with his earliest possible release date occurring in 2014.In 2006, the father commenced this proceeding seeking monthly in-person visitation with hischildren. Following a hearing, Family Court granted the father four visits per year with bothdaughters. The mother appeals.
Visitation decisions are generally left to Family Court's sound discretion, requiring reversalonly where the decision lacks a sound and substantial basis in the record (see Matter of Roe v Roe, 33 AD3d1152, 1155 [2006]). Here, the father wrote to his children almost weekly [*2]from prison, called when permitted by the mother and the prison,and had regularly cared for the children prior to his incarceration. The father was transferredfrom Attica Correctional Facility in Wyoming County to Coxsackie Correctional Facility inGreene County. While Attica is a considerable distance from the mother's home in AlbanyCounty, Coxsackie is approximately 30 miles away. This new location greatly reduced thetransportation time and expenses associated with visitation. Considering the father's extensiveinvolvement in the children's lives both before and after incarceration, coupled with his newclose proximity to the children, he established a change in circumstances (cf. Matter of Conklin v Hernandez, 41AD3d 908, 911 [2007]).
With a change in circumstances having been established, Family Court was then required toconduct a best interests analysis (seeMatter of Kerwin v Kerwin, 39 AD3d 950, 951 [2007]). "[T]he best interests of childrengenerally lie with a meaningful relationship with both parents" (Tait v Tait, 44 AD3d 1142, 1143[2007]). Visitation with a noncustodial parent is presumed to be in the children's best interests,although the presumption can be overcome with evidence that visitation would be detrimental tothe children's welfare (see Matter ofTanner v Tanner, 35 AD3d 1102, 1103 [2006]; Matter of Frierson v Goldston, 9 AD3d 612, 614 [2004]). Aparent's incarceration, by itself, does not vitiate this presumption (see Matter of Albanese v Albanese, 44AD3d 1117, 1120 [2007]; Matter of Tanner v Tanner, 35 AD3d at 1103; Matterof McCrone v Parker, 265 AD2d 757, 757-758 [1999]). The father, who was the onlywitness at the hearing, testified that he regularly cared for the children before his incarceration,called when permitted by the prison and the mother, wrote the children letters almost weekly,and his relatives were willing to assist with transportation or reimburse the mother for the cost oftransporting the children to visits. The father took steps while in prison to improve his life,including being elected chair of his Alcoholics Anonymous group, regularly attending NarcoticsAnonymous to address the addiction which led to his incarceration, working in various prisonjobs and attending the chapel program. The mother brought the children to visit the father in jailand prison several times before she filed for divorce, but those visits occurred quite some timeprior to the filing of the instant petition.
While the children's wishes are not dispositive, they are one factor for the court to consider(see Matter of Miosky v Miosky, 33 AD3d 1163, 1166-1167 [2006]; see also Matter of Burch v Willard, 57AD3d 1272, 1273 [2008]). Here, the Law Guardian for the older daughter originallyinformed Family Court that her client wanted monthly visitation, but later, after a visit betweenthat child and the father, stated that the older daughter wanted visitation once per year. The LawGuardian for the younger daughter proffered that child's wishes not to see the father. Theyounger daughter also had not been participating in the court-ordered telephone visitation.Despite the older daughter's apparent change in position and the younger daughter's resistance toany contact with the father, neither Law Guardian nor either parent's attorney requested aLincoln hearing. Such a hearing would have been helpful for Family Court to determinethe older daughter's actual desires and whether her preference for visitation was the result of herrecent visit with the father, improper influence by the mother or some other cause. Additionally,the court could have determined why the younger daughter did not want visitation and why sherefused to talk to the father on the telephone. In light of the limited evidence at the hearing, thechildren's ages, their apprehension regarding visitation, change in position and the requirementthat visitation take place inside a state prison, discovering this information regarding thechildren's wishes and their reasons for those wishes would have been helpful to the court'sdetermination of what was in their best interests. Because we feel that a Lincoln hearingwas appropriate, and that the record is bereft of evidence as to why the Law Guardians failed torequest one, we remit for such a hearing. The current order should remain in effect pending [*3]Family Court's order following a Lincoln hearing.
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the corrected order isreversed, on the facts, without costs, and matter remitted to the Family Court of Albany Countyfor further proceedings not inconsistent with this Court's decision.