| Matter of Garraway v Laforet |
| 2009 NY Slip Op 08910 [68 AD3d 1192] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Anthony M. Garraway, Appellant, v Denise L.Laforet, Respondent. |
—[*1] Alice D. Decker, Legal Aid Society, Binghamton, for respondent. Steven J. Getman, Law Guardian, Ovid.
Garry, J. Appeal from an order of the Family Court of Broome County (Charnetsky, J.),entered December 3, 2008, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for visitation with one of the parties' children.
Petitioner (hereinafter the father) has been incarcerated since 2002 on three felonyconvictions for animal fighting and perjury, with a maximum release date in 2013. In 2007,respondent (hereinafter the mother) was awarded sole legal and physical custody of the parties'two sons, born in 1999 and 2001. Only the younger son (hereinafter the child) is involved in thisproceeding. Between 2003 and 2006, the mother brought the child to the prison for frequentvisits with the father. The father's brother (hereinafter the uncle) also brought the child for somevisits. In August 2006, the mother stopped all visitation, allegedly because counseling andparenting classes had helped her understand her role as a victim of the father's domestic violence.She testified that the father had coerced her into bringing the child to visit him, that he hadsubjected her to inappropriate sexual behavior during visits in front of the child, that he insistedon lengthy visits without regard for the child's needs, and that the child was exposed to foullanguage and inappropriate behavior on the part of others in the prison visiting area.
In April 2008, the father commenced this proceeding seeking weekly visitation. After a[*2]fact-finding hearing, Family Court granted the petition,permitting visits at the prison in January and July of each year, with transportation to beprovided by the uncle. The order directed the father and the uncle to refrain from makingderogatory remarks about the mother and her family during the visits and further allowed thefather to send weekly correspondence to the child, to be screened by the mother forappropriateness before it was given to the child. The father now appeals, with the support of theLaw Guardian, contending that he should have been given more frequent visitation.
Visitation with a noncustodial parent is presumed to be in a child's best interests even whenthe parent is incarcerated (see Matter ofFlood v Flood, 63 AD3d 1197, 1198 [2009]; Matter of Tanner v Tanner, 35 AD3d 1102, 1102 [2006]). Thepresumption may be overcome by substantial evidence that visits would be harmful to the child'swelfare or would not be in the child's best interests (see Matter of Trombley v Trombley,301 AD2d 890, 891 [2003]; Matter of McCrone v Parker, 265 AD2d 757, 757-758[1999]). In finding that some visitation was proper, Family Court gave particular weight to thechild's long history of visits at the prison. The father argues that in view of that history, as wellas the prison's location within an hour of the child's home, the relatively short period of thefather's incarceration, and the uncle's willingness to provide transportation, the court's award ofonly two visits a year was unduly restrictive. While such factors as distance and transportationare properly taken into account in considering an incarcerated parent's application for visitation(see e.g. Matter of Williams v Tillman, 289 AD2d 885, 886 [2001]; Matter ofMcCrone v Parker, 265 AD2d at 758; Matter of Ellett v Ellett, 265 AD2d 747, 748[1999]), they do not complete the inquiry. In determining how much contact with the father wasin the child's best interests, as in any other custody or visitation analysis, the court was requiredto consider the "totality of the circumstances," as it did here (Matter of Eck v Eck, 33 AD3d 1082, 1083 [2006]).
In addition to the child's youth and the mother's allegations of domestic violence andproblems during the child's previous visits, the record includes numerous letters from the fatherto the child, who was seven years old at the time of trial, that contain clearly inappropriatematerial, such as a photograph of a semi-nude young woman identified as "your new mommy"and a statement that the child's older brother was not the father's biological son. The letters alsocontain numerous derogatory comments about the mother, such as warnings that she wouldabandon the child, that she was lying to him and "brainwashing" him, that she intended to drugthe child, and that she was mentally ill. Significantly, the father testified at trial that he sawnothing inappropriate in his letters and that he had merely told the child the truth. According therequisite "substantial deference" to Family Court's findings (Matter of Ellett v Ellett, 265AD2d at 748), we find that the conclusion that it was in the child's best interests to limit his visitswith his father to twice yearly was supported by a sound and substantial basis in the record(see Matter of Flood v Flood, 63 AD3d at 1198; see also Matter of Lewis vLowney, 296 AD2d 624, 625 [2002]; Matter of Ellett v Ellett, 265 AD2d at 748).
Spain, J.P., Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.