| Matter of Chambers v Renaud |
| 2010 NY Slip Op 03511 [72 AD3d 1433] |
| April 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Kyle Chambers, Appellant, v Amanda Renaud,Respondent. |
—[*1] Englert, Coffey, McHugh & Fantauzzi, L.L.P., Schenectady (Barbara L. Guzman ofcounsel), for respondent. Laura L. Silva, Law Guardian, Schenectady.
Garry, J. Appeal from an order of the Family Court of Schenectady County (Taub, J.),entered June 30, 2009, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of visitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of achild born in 2005. The father is incarcerated and expects to be released in 2011. In October2008, after filing a petition for modification of custody and visitation, the father consented to anorder granting the mother sole custody of the child, requiring her to provide the father withpictures and updates of the child's status every 60 days, and permitting him one telephone callwith the child each month. In May 2009, the father commenced this proceeding to modifyvisitation, seeking monthly visits with the child and an order precluding the mother fromrelocating with the child to Arizona. Simultaneously, the father commenced a violationproceeding alleging that the mother had traveled out of state with the child without his [*2]permission. Family Court dismissed the violation petition at theinitial appearance.[FN*]The court subsequently dismissed the modification petition without a hearing, finding that thefather had failed to show a change of circumstances. The father appeals.
A party seeking to modify an existing visitation order must aver a change of circumstancesdemonstrating a need for modification to ensure the child's best interests (see Matter of Perry v Perry, 52 AD3d906, 906 [2008], lv denied 11 NY3d 707 [2008]). The father alleged thatcircumstances had changed in two respects: he was now able to provide transportation for visitswith the child at the prison, and the mother intended to relocate with the child to Arizona. FamilyCourt did not consider the transportation issue, finding that the father had not previouslyrequested physical visits with the child and that the child's relocation to Arizona would notinterfere with the existing mail and telephone communication. Therefore, in the court's view, thefather did not establish a change of circumstances.
We are unable to sustain this conclusion on the sparse record presented. A previous orderhad directed monthly visits at the prison, undermining the finding that the father had notpreviously requested or obtained in-person visits. The record contains little information aboutthis order, preventing us from discerning whether visits had occurred or why they werediscontinued. In his May 2009 petition, the father claimed that he had consented to mail andtelephone communication because he was unable to provide transportation for in-person visits. Iftransportation obstacles were the primary reason that in-person visits at the prison wereunsuccessful in the past, their removal may constitute changed circumstances justifyingmodification (see Matter of Flood vFlood, 63 AD3d 1197, 1198 [2009]; see also Matter of Conklin v Hernandez, 41 AD3d 908, 911[2007]; Matter of Ellett v Ellett, 265 AD2d 747, 748 [1999]). During the proceedings,the mother's counsel further confirmed that the mother planned to relocate to Arizona with thechild and other members of her family. As Family Court noted, such a move would not preventthe father from continuing to have mail and telephone communication with the child (seeMatter of Cooke v Miller, 300 AD2d 959, 960 [2002]); however, in addition to obviatingany chance of reestablishing in-person visits during the remainder of the father's incarceration,this move would almost certainly divest New York of jurisdiction by the time of his anticipatedrelease in 2011 (see 28 USC § 1738A; Domestic Relations Law § 76-a),effectively depriving him of the ability to establish a relationship with the child.
Visitation with a noncustodial parent is presumed to be in a child's best interests even whenthe parent is incarcerated (see Matter of Flood v Flood, 63 AD3d at 1198; Matter of Tanner v Tanner, 35 AD3d1102, 1103 [2006]). While such visitation need not take place in person (see e.g. Matter of Cole v Comfort, 63AD3d 1234, 1235 [2009], lv denied 13 NY3d 706 [2009]), on the record presented,the father made a sufficient showing of changed circumstances to warrant a hearing.
Further, summary dismissal was inappropriate insofar as the petition sought to prevent therelocation. The mother bore the burden to establish by a preponderance of the evidence that themove was in the best interests of the child (see Matter of Solomon v Long, 68 AD3d 1467, 1469 [2009]; Matter of Groover v Potter, 17 AD3d718, 718-719 [2005]). The fact that she had [*3]sole custodyof the child did not excuse this burden. Whether a move is in a child's best interests requiresconsideration of several well-established factors (see Matter of Tropea v Tropea, 87NY2d 727, 740-741 [1996]; Matter of Kryvanis v Kruty, 288 AD2d 771, 772 [2001];Matter of Burr v Emmett, 249 AD2d 614, 614-615 [1998]). The absence of any recordevidence on these factors prevents us from conducting an independent review and requiresremittal for an evidentiary hearing to determine whether the relocation is in the child's bestinterests (see Matter of Brown vBrown, 52 AD3d 903, 905-906 [2008]; Castler v Castler, 233 AD2d 720, 721[1996]).
Peters, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the order is reversed,on the law, without costs, and matter remitted to the Family Court of Schenectady County forfurther proceedings not inconsistent with this Court's decision.
Footnote *: No appeal was taken from thedismissal of the violation petition.