| Matter of Goldsmith v Goldsmith |
| 2009 NY Slip Op 08918 [68 AD3d 1209] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Adam D. Goldsmith, Appellant, v Adriana C.Goldsmith, Respondent. |
—[*1] Willis & Ng, Monticello (Peter Ng of counsel), for respondent. Jane M. Bloom, Law Guardian, Rock Hill.
Garry, J. Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.),entered January 27, 2009, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for modification of a prior order of visitation.
The parties were married in 2002 and are the parents of one daughter, born in October 2006.They separated in July 2007, shortly before petitioner (hereinafter the father) began serving aprison term of 20 years upon a conviction for kidnapping. In February 2008, Family Courtentered an order on consent granting sole custody of the child to respondent (hereinafter themother) and obligating the mother to send quarterly status reports and photographs of the childto the father. The father commenced this modification proceeding in May 2008 seeking visitationwith the child. After a fact-finding hearing, the court denied the father's petition, finding thatvisitation at the prison was not in the child's best interests. The father now appeals.
As a threshold matter, although Family Court did not address the issue, the father did notdemonstrate a change of circumstances warranting modification of the visitation order in thechild's best interests (see Family Ct Act § 467 [b] [ii]). His claim that the child wasolder than she had been when the consent order was entered and thus better able to withstand thetravel to the prison was insufficient to meet his burden in this regard (see Matter of Folsom vSwan, 41 [*2]AD3d 899, 900 [2007]; Matter of Reese vJones, 249 AD2d 676, 677 [1998]).
Even if the father had met this burden, the record supports Family Court's determination thatvisitation was not in the child's best interests. The father's incarceration, standing alone, does notpreclude his right to visitation (seeMatter of Conklin v Hernandez, 41 AD3d 908, 910 [2007]). As the court noted, thefather had been involved in caring for his daughter during her infancy, until she was 11 monthsof age. The record further reveals that he has made earnest efforts during his incarceration tomaintain written communication with her. Under the father's proposal, however, thetwo-year-old child would have been required to undertake a trip of approximately three or morehours one way to the state prison, transported by relatives who are virtual strangers to her. At thetime of the hearing, she had not had any direct contact with her father for approximately 15months. According the requisite deference to the court's findings, its discretionary determinationthat visitation was not in the child's best interests has a sound basis in the record (see Matter of Cole v Comfort, 63AD3d 1234, 1235-1236 [2009], lv denied 13 NY3d 706 [2009]; Matter of Moore v Schill, 44 AD3d1123, 1123 [2007]; Matter of Williams v Tillman, 289 AD2d 885, 886 [2001];Matter of Ellett v Ellett, 265 AD2d 747, 748 [1999]).
Mercure, J.P., Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.