| Matter of Lapham v Senecal |
| 2015 NY Slip Op 01685 [125 AD3d 1210] |
| February 26, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Christopher Walter Lapham,Appellant, v Kayla Lee Senecal, Respondent. |
Jessica C. Eggleston, Saratoga Springs, for appellant.
Omshanti Parnes, Plattsburgh, attorney for the child.
Lynch, J. Appeal from an order of the Supreme Court (Lawliss, J.), entered May 22,2013 in Clinton County, which partially granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, for modification of a prior order of visitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of a child born in 2007. Pursuant to an August 2011 order entered on consent, themother was awarded sole legal and physical custody of the child and the father wasgranted visitation supervised by either his sister or, if she was not available, by ChildCare Coordinating Counsel of the North Country-Family Connections. In May 2012, thefather began a nearly continuous period of incarceration until November 2012, when hewas transferred to Bare Hill Correctional Facility in Franklin County (see People v Lapham, 117AD3d 1341 [2014], lv denied 23 NY3d 1064 [2014]). In February 2013,while in state custody, the father commenced this proceeding to modify the prior custodyorder, requesting that the child be brought to visits at the state facility each month. Aftera trial, Supreme Court awarded the father one visitation with the child every four months,supervised by the maternal grandmother, for so long as he remained at Bare HillCorrectional Facility, an approximately one-hour drive from the child's home. The fathernow appeals and we affirm.
As the parties do not dispute that the father's incarceration constituted a substantialchange in circumstances, the primary issue presented is whether Supreme Court shouldhave allowed more frequent visitation. Generally, there is a presumption in favor ofvisitation by a noncustodial parent, even where the noncustodial parent is incarcerated(see Matter of Granger v [*2]Misercola, 21 NY3d 86, 90-91 [2013]; Matter of Ruple vHarkenreader, 99 AD3d 1085, 1086 [2012]; Matter of Garraway v Laforet, 68 AD3d 1192, 1193[2009]; Matter of Tanner vTanner, 35 AD3d 1102, 1103 [2006]). This presumption may be overcome ifvisitation is not in the child's best interests (see Matter of Garraway v Laforet, 68AD3d at 1194). Similarly, the frequency of visitation is also subject to consideration ofthe child's best interests in view of the " 'totality of the circumstances' "(id., quoting Matter ofEck v Eck, 33 AD3d 1082, 1083 [2006]). The discretionary findings of a trialcourt in this regard are entitled to deference unless they lack a sound and substantialbasis in the record (see Matterof Culver v Culver, 82 AD3d 1296, 1297 [2011], lv denied 17 NY3d710 [2011]).
Here, Supreme Court determined that while there was no claim that it would beaffirmatively harmful for the child to visit the father, there was also little benefit giventhe father's "poor character and poor criminal behavior" and the lack of an establishedrelationship between the father and the child. The record indicates that the court alsoconsidered the time it would take for the child to travel and be admitted to the facility tovisit with the father, who did not regularly exercise the opportunity to enjoy visitationwith the child when it was available. Under the circumstances, and giving the requisitedeference, we find that Supreme Court's conclusion that it was in the child's best intereststo limit visitation to three times a year was supported by a sound and substantial basis inthe record (see Matter of Garraway v Laforet, 68 AD3d at 1194; Matter of Cole v Comfort, 63AD3d 1234, 1236 [2009], lv denied 13 NY3d 706 [2009]; Matter of Moore v Schill, 44AD3d 1123, 1123 [2007]). Further, because the relevant factors and their impact onthe child's best interests would need to be reconsidered, Supreme Court properlydetermined that the father was entitled to visitation with the child only for so long as heremained incarcerated at Bare Hill Correctional Facility or another facility of similardistance from the child's home (see Matter of Ellett v Ellett, 265 AD2d 747, 748[1999]). The father's claims in this regard should be raised in a modification petition(see Matter of Granger v Misercola, 21 NY3d at 92; Matter of Moore vSchill, 44 AD3d at 1123).
Peters, P.J., Lahtinen and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.