| Matter of Granger v Misercola |
| 2012 NY Slip Op 05299 [96 AD3d 1694] |
| June 29, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Shawn G. Granger, Respondent, v Danielle D.Misercola, Appellant. |
—[*1] Charles J. Greenberg, Buffalo, for petitioner-respondent. Melissa L. Koffs, Attorney for theChild, Chaumont, for Trentin T.M.
Appeal from an order of the Family Court, Jefferson County (Peter A. Schwerzmann, A.J.),entered December 7, 2011 in a proceeding pursuant to Family Court Act article 6. The ordergranted the petition for visitation.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner father commenced this Family Court Act article 6 proceedingseeking visitation with the parties' child at the correctional facility where he was thenincarcerated. Family Court granted the father's petition and, inter alia, awarded him "one fourhour visit during the months of January and April 2012 and then every other month commencingin July 2012." We affirm.
" 'It is generally presumed to be in a child's best interest[s] to have visitation with his or hernoncustodial parent and the fact that a parent is incarcerated will not, by itself, render visitationinappropriate' " (Matter of Thomas v Thomas, 277 AD2d 935 [2000]; see Matter of Cierra L.B. v RichardL.R., 43 AD3d 1416, 1416-1417 [2007]). "Unless there is a compelling reason orsubstantial evidence that visitation with an incarcerated parent is detrimental to a child's welfare,such visitation should not be denied" (Thomas, 277 AD2d 935; see Matter of Rhynesv Rhynes, 242 AD2d 943, 943 [1997]). "[V]isitation decisions are generally left to FamilyCourt's sound discretion, requiring reversal only where the decision lacks a sound and substantialbasis in the record" (Matter of Helles vHelles, 87 AD3d 1273, 1273 [2011] [internal quotation marks omitted]).
Contrary to the contentions of respondent mother and the Attorney for the Child, weconclude that there is a sound and substantial basis in the record to support the court'sdetermination to grant the father visitation with the child in accordance with the schedule setforth in the order (see Matter of Culverv Culver, 82 AD3d 1296, 1298-1299 [2011], appeal dismissed [*2]16 NY3d 884 [2011], lv denied 17 NY3d 710 [2011]; Matter of Baker v Blanchard, 74 AD3d1427, 1428-1429 [2010]; Rhynes, 242 AD2d at 943-944; cf. Matter of Albanese v Albanese, 44AD3d 1117, 1120 [2007]; seegenerally Matter of Nicole J.R. v Jason M.R., 81 AD3d 1450, 1451 [2011], lv denied17 NY3d 701 [2011]). In reaching that conclusion, we defer to the court's opportunity toassess firsthand the character and credibility of the parties (see Helles, 87 AD3d at1273-1274; Nicole J.R., 81 AD3d at 1451).
The record establishes that the father was convicted of various felony drug charges, for whichhe was sentenced to an aggregate term of incarceration of eight years. Prior to his incarceration,the father was present for the birth of the child, and he testified that, during the six or sevenmonths in which he was not incarcerated following the child's birth, he visited with the child onapproximately 12 occasions. Although the father has not seen the child since the father wasincarcerated, at which time the child was only a year old, the father has repeatedly requested thatthe mother transport the child to the correctional facility for visitation, and he has attempted tomaintain a relationship with the child over the telephone and by sending letters, cards, and gifts.We thus conclude that the father made, and continues to make, efforts to establish a relationshipwith the child, and it cannot be said that he is "a stranger to the child" (Culver, 82 AD3dat 1299 [internal quotation marks omitted]).
We recognize that the three-year-old child will be required to travel a distance of over twohours in both directions to effectuate visitation. Nevertheless, the fact "[t]hat the child is youngand will likely need to travel a considerable distance between [his] residence and the father'sprison does not necessarily preclude visitation" (id.). We note that the father has arrangedfor his mother and sisters to transport the child for visitation. Although it is apparent from therecord that the child is not familiar with those members of the father's family, making them"virtual strangers" (Matter of Goldsmithv Goldsmith, 68 AD3d 1209, 1210 [2009]), the court purposely scheduled limited visitsduring the initial six-month period to afford the parties the opportunity to familiarize the childwith the father's mother and sisters, and the court thus fashioned a visitation plan that was "'viable and workable' " (Culver, 82 AD3d at 1299). The record further establishes that thefather's earliest release date is not until September 2016, and we agree with the court that such along period of separation could be detrimental to the established relationship between the fatherand the child.
Finally, although it appears that the father was transferred to another correctional facilityafter the court issued its determination, which the mother alleges will lengthen the distance thatthe child must travel to effectuate visitation, we note that "any change in circumstance is moreappropriately the subject of a modification petition" (Matter of Moore v Schill, 44 AD3d 1123, 1123 [2007]).Present—Smith, J.P., Fahey, Peradotto, Lindley and Martoche, JJ.