| Matter of Smith v Smith |
| 2012 NY Slip Op 01262 [92 AD3d 791] |
| February 14, 2012 |
| Appellate Division, Second Department |
| In the Matter of Roy Smith, Appellant, v Charmain Smith,Respondent. |
—[*1] Kenneth M. Tuccillo, Hastings-on-Hudson, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter and Barbara H. Dildine of counsel),attorney for the children.
In a visitation proceeding pursuant to Family Court Act article 6, the father appeals, aslimited by his brief, from so much of an order of the Family Court, Kings County (Graham, J.),dated October 26, 2010, as, without a hearing, granted his petition for visitation only to the extentof awarding him telephone contact with the subject children once per month and awarding himvisitation in person once per year if he paid the sum of $250 to the mother, and, in effect,prohibited him from filing another petition for visitation for a period of three years.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof, in effect, prohibiting the father from filing another petition for visitationfor a period of three years; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
"The court has discretion to determine what, if any, visitation is in the best interests of thechild" (Matter of Franklin v Richey,57 AD3d 663, 664 [2008] [internal quotation marks omitted]; see Matter of Mera v Rodriguez, 73AD3d 1069 [2010]). "This determination will not be set aside unless it lacks a substantial. . . basis in the record" (Matter of Franklin v Richey, 57 AD3d at 664[internal quotation marks omitted]; seeMatter of Wispe v Leandry, 63 AD3d 853 [2009]; Matter of Thompson v Yu-Thompson, 41 AD3d 487, 488 [2007])."While it is true that a parent's incarceration does not, by itself, render visitation inappropriate,visitation will be denied where there is substantial evidence that such visitation would bedetrimental to the child" (Matter ofMorales v Bruno, 29 AD3d 1001 [2006] [citations omitted]; see Matter of Rodriquezv Van Putten, 309 AD2d 807 [2003]).
Here, there is a sound and substantial basis in the record to establish that, under thecircumstances, including the logistical difficulties and expense in arranging for the children totravel the significant distance to visit the father in person, the parties' relative lack of resources,and the incarcerated father's refusal to seek a transfer to a facility closer to the children, visitationwith the father in person is not in the children's best interests unless the father contributes towardthe cost of such visitation (see Matter of Franklin v Richey, 57 AD3d at 664; Matterof Conklin v Hernandez, [*2]41 AD3d 908, 911 [2007];Matter of Rodriquez v Van Putten, 309 AD2d 807 [2003]). Furthermore, the FamilyCourt's determination that the father should have only monthly telephone contact with thechildren was supported by a substantial basis in the record.
However, the Family Court improvidently exercised its discretion by, in effect, prohibitingthe father from filing another petition for visitation for a period of three years (see Matter ofFranklin v Richey, 57 AD3d at 664; Matter of Wispe v Leandry, 63 AD3d at 853).Since transportation is the primary obstacle to visitation in person between the children and thefather, its removal as an obstacle, were the father to be transferred to a correctional facility closerto the children, may constitute changed circumstances justifying modification. Thus, the FamilyCourt's determination that the father could not file another visitation petition for a period of threeyears was not in the best interests of the children (see Matter of Chambers v Renaud, 72 AD3d 1433, 1434 [2010]; Matter of Flood v Flood, 63 AD3d1197, 1198 [2009]).
The parties' remaining contentions are without merit. Mastro, A.P.J., Angiolillo, Eng andCohen, JJ., concur.