| Matter of Leonard v Pasternack-Walton |
| 2011 NY Slip Op 00447 [80 AD3d 1081] |
| January 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of Leo Leonard, Appellant, v MiriamPasternack-Walton, Respondent. (And Another Related Proceeding.) |
—[*1] Daniel Gartenstein, Kingston, attorney for the child.
Lahtinen, J. Appeal from an order of the Family Court of Ulster County (McGinty, J.),entered April 23, 2009, which, among other things, granted respondent's application, in twoproceedings pursuant to Family Ct Act article 6, for custody of the parties' child.
The parties are the unmarried parents of a daughter (born in 2007) and they have not residedtogether since the child's birth. In February 2008, during one of his infrequent visits, petitioner(hereinafter the father) became angry and engaged in various acts of domestic violence directedat respondent (hereinafter the mother) and the child. As a result of this conduct, he eventuallywas convicted of several felonies and received a lengthy prison sentence exceeding 20 years.While the criminal matter was pending, he commenced the first of these proceedings seekingvisitation with the child. The mother then commenced the second proceeding requesting solecustody. After a hearing, Family Court awarded the mother sole physical and legal custody. Thecourt limited the father's contact with the child to receiving one photograph per year, it issued anorder of protection barring the father from communicating with the child until her 18th birthday,and it provided that the father's completion of anger management and parenting programs wouldconstitute sufficient changed circumstances for him to petition for expanded visitation. Thefather appeals.
The father argues that Family Court erred in denying him visitation. "Although the [*2]incarceration of a noncustodial parent shall not, by itself, precludevisitation with his or her child, a denial of an application for visitation is proper where evidencedemonstrates that visitation would not be in the child's best interest" (Matter of Ellett vEllett, 265 AD2d 747, 747 [1999] [citations omitted]; see Matter of Dantzler v McKane, 48 AD3d 937, 938 [2008], lvdenied 10 NY3d 709 [2008]). In addition to relating the father's earlier acts of physicalviolence and repeated use of derogatory names directed toward her, the mother testified aboutsome of the events of February 2008 that resulted in defendant's criminal convictions. She statedthat, when she was holding the child, the father threw ice into her face causing her to sustain aswollen lip. He held a knife to her nose. He then made a knife cut on her neck. She eventuallyescaped and police were summoned. When the police arrived, the father had the child in hisarms, and he held a knife over the child's head as he ran across a yard into a house. He refused tosurrender the child to police for a protracted period. While the father's testimony painted adifferent version of events, Family Court credited the mother's testimony, and we accorddeference to that credibility determination (see Matter of Vann v Herson, 2 AD3d 910, 913 [2003]). In light ofthe child's young age, the lack of prior meaningful contact between the father and child, the actsof domestic violence by the father against the mother and child and the father's lengthy prisonsentence, there is a sound and substantial basis supporting Family Court's determination thatvisitation with and communication from the father would not be in the child's best interest (see Matter of Morelli v Tucker, 48AD3d 919, 920 [2008], lv denied 10 NY3d 709 [2008]; Matter of Dantzler vMcKane, 48 AD3d at 939).
We are unpersuaded by the father's contention that Family Court's order improperly requiredcompletion of anger management and parenting programs before any visitation would be allowed(see generally Matter of Mongiardo v Mongiardo, 232 AD2d 741, 743 [1996]). Instead,the order made clear that completion of such programs would be considered a sufficient changeof circumstances for the father to seek expanded contact with the child (cf. Matter of Baker v Blanchard, 74AD3d 1427, 1428-1429 [2010]; Matter of Grayson v Fenton, 13 AD3d 914, 916 [2004]). However,other factors were not foreclosed from constituting a sufficient change of circumstances even inthe absence of completion of the programs; for example, such change might be found if thefather's conviction was reversed or his sentence shortened and he was released from prison (cf. Matter of Kowatch v Johnson, 68AD3d 1493, 1494 [2009], lv denied 14 NY3d 704 [2010]; Matter of Powell v Blumenthal, 35AD3d 615, 616 [2006]). Stated another way, no particular change of circumstances ismandated as a prerequisite for a petition seeking increased visitation. Instead, one scenario isestablished where the threshold of change of circumstances will be considered satisfied. But,even as to that situation, the order does not indicate that the petition would necessarily begranted, and any change in visitation would have to be in the child's best interest (see Matter of Goldsmith v Goldsmith,68 AD3d 1209, 1210 [2009]).
Finally, the record amply supports the terms of the order of protection, which the father canseek to modify in the future upon a proper showing (see Matter of Stitzel v Brown, 1 AD3d 826, 828 [2003]; Matterof Royea v Hutchings, 260 AD2d 678, 680 [1999]).
Spain, J.P., Rose, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,without costs.