| Matter of Cole v Comfort |
| 2009 NY Slip Op 04330 [63 AD3d 1234] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Dustin L. Cole, Appellant, v Kayla M. Comfort,Respondent. |
—[*1] Randolph V. Kruman, Cortland, for respondent. Aaron Turetsky, Law Guardian, Keeseville.
Lahtinen, J. Appeal from an order of the Family Court of Cortland County (Campbell, J.),entered September 5, 2008, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody and visitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) cohabitated brieflyand are the parents of a daughter born in 2003. In November 2004, they consented to an ordergranting the mother sole custody of the child, with the father permitted weekly supervisedvisitation. According to the mother's testimony, the father did not avail himself of this visitation.The father was later incarcerated in October 2005 and subsequently sent to a state correctionalfacility in May 2006 after being convicted of grand larceny and burglary. He eventuallycommenced this proceeding in February 2008 seeking to have the child visit him once per monthat the correctional facility where he is housed. After conducting a hearing, Family Courtrendered a written decision finding that, although the father's incarceration constituted asubstantial change of circumstances, it nevertheless was not in the child's best interests to modifythe order to require prison visitation. The father appeals.
We affirm. The parties do not dispute that the father's incarceration constituted a substantialchange in circumstances and, accordingly, the dispositive issue distills to whether [*2]Family Court erred in finding that prison visitation with the fatherwas not in the best interests of the child (see generally Matter of Howard v Barber, 47 AD3d 1154, 1155[2008]). The presumption favoring visitation with a noncustodial parent remains in place evenwhen that parent is incarcerated (see Matter of Rogowski v Rogowski, 251 AD2d 827,827 [1998]). Such visitation, however, need not always include contact visitation at the prison(see Matter of Perry v Perry, 52AD3d 906, 906 [2008], lv denied 11 NY3d 707 [2008]; Matter of Conklin v Hernandez, 41AD3d 908, 911 [2007]). Moreover, "the propriety of visitation is generally left to the sounddiscretion of Family Court whose findings are accorded deference by this Court and will remainundisturbed unless lacking a sound basis in the record" (Matter of Edward S. v Moon, 7 AD3d 834, 836 [2004] [internalquotation marks and citation omitted]).
Here, the reasons set forth by Family Court for not directing contact visitation included: thefather failed to exercise meaningful visitation before his incarceration; he had virtually noinvolvement in the five-year-old child's life during the previous four years; the father wasessentially a stranger to the child; and the distance to his place of incarceration included athree-hour round trip. Family Court also noted, based on the father's testimony, that he may soonbe released from incarceration. The findings of Family Court are amply supported by the recordand provide adequate grounds for its determination to dismiss the petition.
Peters, J.P., Rose, Kane and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.