Matter of Butler v Ewers

2010 NY Slip Op 08487 [78 AD3d 1667]

November 19, 2010

Appellate Division, Fourth Department

As corrected through Wednesday, January 19, 2011

In the Matter of Shondell R. Butler, Appellant, v Kelly J. Ewers,Respondent.

—[*1]Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), forpetitioner-appellant. Linda M. Campbell, Syracuse, for respondent-respondent. Kelly M. Corbett,Attorney for the Child, Fayetteville, for Dylon E.

Appeal from an order of the Family Court, Onondaga County (David J. Roman, J.H.O.), enteredFebruary 9, 2010 in a proceeding pursuant to Family Court Act article 6. The order denied the petition.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner father appeals from an order denying his petition seeking visitation withthe parties' 10-year-old son. The father was sentenced in 2002 to an aggregate prison term of272/3 years to life based upon his conviction of arson in the first degree and two countsof intimidating a witness in the third degree and his unrelated conviction of arson in the second degree.Although we agree with the father that Family Court failed to apply the proper burden of proof indenying his petition (see Matter of Lonobile v Betkowski, 261 AD2d 829 [1999]), wenevertheless conclude that the record is sufficient to enable us to determine that visitation would not bein the best interests of the child (see Matter of Moses v Rachal S., 273 AD2d 928 [2000];Matter of Rogowski v Rogowski, 251 AD2d 827 [1998]).

The record demonstrates that the father failed to establish a meaningful relationship with the child(see Matter of Bougor v Murray, 283 AD2d 695 [2001]). The father has been incarceratedsince the child was two years old, and his last visit with the child took place when the child was three orfour years old. The father subsequently waited at least five years to file a petition for visitation, when thechild was nine years old (see id. at 696). The child has no memory of the father, and heindicated that he would not recognize his father if they were in the same room (see Matter of Vannv Vann, 205 AD2d 897 [1994], lv denied 84 NY2d 805 [1994]). In addition, given hislengthy prison sentence, the father "will remain in prison until long after the child[ ] reach[es] the age ofmajority" (id. at 898; see Matter ofDavid S. v Nicole U., 31 AD3d 1206, 1207 [2006]). The record further establishes that thechild suffers from severe car sickness, and visiting the father in prison would require the child to travel2½ to 3 hours each way with his paternal relatives, with whom [*2]he has no relationship (see Matter of Ellett v Ellett, 265 AD2d747 [1999]; Rogowski, 251 AD2d 827; Matter of Davis v Davis, 232 AD2d 773[1996]). Present—Centra, J.P., Fahey, Peradotto, Lindley and Green, JJ.