| Matter of Joshua SS. v Amy RR. |
| 2013 NY Slip Op 08477 [112 AD3d 1159] |
| December 19, 2013 |
| Appellate Division, Third Department |
| In the Matter of Joshua SS., Appellant, v Amy RR.,Respondent. |
—[*1] The Scagnelli Law Firm, Albany (Peter Scagnelli of counsel), for respondent. Cynthia Feathers, Glens Falls, attorney for the child.
McCarthy, J. Appeal from an order of the Family Court of Albany County (Maney,J.), entered March 14, 2012, which partially granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to modify a prior order of custody andvisitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of a daughter (born in 2004). In September 2005, a custody order was enteredawarding the parties joint legal custody with primary physical custody to the mother. Theparties began living together later that year and did so until May 2006, when the fatherwas arrested after the mother's older daughter died of severe injuries sustained while inthe father's sole care. Thereafter, the father was convicted of manslaughter in the seconddegree and sentenced to a prison term of 5 to 15 years, which judgment was affirmed bythis Court. The father was also adjudicated to have derivatively neglected the subjectchild and a temporary order of protection was issued in her favor, barring all contact bythe father until October 2007. The father commenced the instant proceeding in December2009 for modification of visitation and, following a hearing, Family Court found thatcommunication between the father and the child was not in her best interests, but grantedthe petition to the extent of ordering the mother to provide a current picture of the childto the father annually. The father now appeals.
We affirm. Generally, visitation with a noncustodial parent is presumed to be in the[*2]best interests of a child, even when that parent isincarcerated (see Matter ofGranger v Misercola, 21 NY3d 86, 90 [2013]; Matter of Telfer v Pickard, 100AD3d 1050, 1051 [2012]; Matter of Ruple v Harkenreader, 99 AD3d 1085, 1086[2012]; Matter of Culver vCulver, 82 AD3d 1296, 1297 [2011], appeal dismissed 16 NY3d 884[2011], lv denied 17 NY3d 710 [2011]). However, the best interests of the childis paramount and, therefore, an application for visitation may be denied where there arecompelling reasons and substantial proof that visitation would be harmful to the child (see Matter of Telsa Z. [DeniseZ.], 84 AD3d 1599, 1603 [2011], lv denied 17 NY3d 708 [2011];Matter of Culver v Culver, 82 AD3d at 1297; Matter of Sullivan CountyDept. of Social Servs. v Richard C., 260 AD2d 680, 682 [1999], lvdismissed 93 NY2d 958 [1999]). Thus, the propriety of visitation is left to the sounddiscretion of Family Court, guided by the best interests of the child, and its decision willnot be disturbed where it is supported by a sound and substantial basis in the record(see Matter of Culver v Culver, 82 AD3d at 1297; Matter of Hobb Y., 56 AD3d998, 999 [2008]; Matter of Robert TT. v Carol UU., 300 AD2d 920, 920[2002]).
Hearing testimony established that the father has not had contact with the mother orthe child since May 2006, and has not made any attempts at contact, even after the orderof protection expired in October 2007. Furthermore, no members of the father's familymade any attempt to maintain a relationship with the child after October 2006. Therecord establishes that the child has no knowledge of the father or of the circumstancessurrounding her sister's death, and the mother testified that she believed that contact withthe father and the possibility of discovering such circumstances would be traumatic forthe child. The record further establishes that the child is now happy and well-adjustedand that she views the mother's new husband as her father and calls him "daddy" of herown volition. Additionally, the father made no attempt to pay court-ordered childsupport—leading to over $4,400 in arrears—and commenced a proceedingin September 2010 in an effort to discontinue his support obligation. Accordingly, we areunpersuaded that Family Court erred in denying petitioner's request for communicationwith the child (see e.g. Matter of Telsa Z. [Denise Z.], 84 AD3d at 1603;Matter of Hobb Y., 56 AD3d at 999-1000; Matter of Sullivan County Dept.of Social Servs. v Richard C., 260 AD2d at 682-683).
Lahtinen, J.P., Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.