| Matter of Kadio v Volino |
| 2015 NY Slip Op 02535 [126 AD3d 1253] |
| March 26, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of David M. Kadio, Respondent, vVanessa Volino, Now Known as Vanessa Simons, Appellant. |
Cynthia Feathers, Glens Falls, for appellant.
Michelle Rosien, Philmont, for respondent.
Albert F. Lawrence, Greenfield Center, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Warren County (Breen, J.),entered January 6, 2014, which granted petitioner's application, in a proceeding pursuantto Family Ct Act article 6, to modify a prior order of custody and visitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theunmarried parents of a child (born in 2009). The parties met while the mother wasvisiting her brother, an inmate at the same correctional facility where the father wasincarcerated. The parties dated upon the father's release, but he was again incarcerated ona parole violation when the child was born in December 2009. The mother took the childto visit the father while he was in prison and, upon his release in May 2010, the fatherlived with the mother and child until September 2010. The father then petitioned forvisitation in October 2010, and a January 2011 consent order awarded the mother solecustody of the child with the father having unsupervised visitation on alternatingweekends and a weekly midweek visitation. Following the consent order, the parties'interactions were tumultuous, including multiple reports to the police and childprotective services, various orders of protection and additional periods of incarcerationfor the father. The father last exercised visitation with the child in April 2011, when thechild was approximately 15 months old. In June 2011, the father pleaded guilty toburglary in the second degree and he was sentenced to an aggregate prison term of 16years to life. Pursuant to an order of protection entered on consent, the father wasprecluded from having any contact with the child or the mother from August 2011 untilAugust 2012. The mother has since married and has two [*2]children with her husband, whom the child believes is hisfather. The mother has promoted this misconception and has no plan to inform the childabout the father.
The father commenced this proceeding in February 2013 seeking to modify the priorconsent order to allow visitation with the child at the facility where he is incarcerated.The mother opposed the application on the grounds that it would be too traumatic for thechild to find out who his real father is and to visit him in a prison setting. Following ahearing, Family Court concluded that visitation would be in the child's best interests andfashioned a schedule requiring the child to receive counseling before beginning weeklytelephone contact and then monthly visits with the father. The court ordered the motherto arrange for the transportation of the child to the father's correctional facility, which isapproximately two hours from her residence, and the father was directed to pay hermileage to help defray the cost of transportation. The mother appeals.[FN*]
We begin our review with the well-established principle that visitation with anoncustodial parent, including an incarcerated parent, is presumed to be in the bestinterests of the child (see Matterof Joshua SS. v Amy RR., 112 AD3d 1159, 1160 [2013], lv denied 22NY3d 863 [2014]; Matter ofCulver v Culver, 82 AD3d 1296, 1297 [2011], appeal dismissed 16NY3d 884 [2011], lv denied 17 NY3d 710 [2011]; Matter of Chambers v Renaud,72 AD3d 1433, 1434 [2010]). The presumption may be overcome, however, upon ashowing, by a preponderance of the evidence, that visitation would be harmful to thechild's welfare or not in the child's best interests (see Matter of Owens v Chamorro, 114 AD3d 1037, 1039[2014]; Matter of Joshua SS. v Amy RR., 112 AD3d at 1160; Matter of Garraway v Laforet,68 AD3d 1192, 1193 [2009]). "The propriety of visitation is left to the sounddiscretion of Family Court and its findings, guided by the best interests of the child, willnot be disturbed unless they lack a sound basis in the record" (Matter of Culver vCulver, 82 AD3d at 1297 [internal quotation marks and citation omitted]; see Matter of Cole v Comfort,63 AD3d 1234, 1235 [2009], lv denied 13 NY3d 706 [2009]; Matter of Moore v Schill, 44AD3d 1123, 1123 [2007]).
The mother contends that Family Court improperly disregarded her concernsregarding the traumatic nature of prison visitation for the child, as well as the concerns ofthe psychologist she retained to evaluate the child. The attorney for the child supports herargument. However, as noted by Family Court, the mother's "strong opposition" tovisitation is an insufficient basis upon which to deny the father's request (Matter ofCulver v Culver, 82 AD3d at 1297 [internal quotation marks and citation omitted]),and "[w]hile the position of the attorney for the child is a factor to be considered, it is notdeterminative" (Porcello vPorcello, 80 AD3d 1131, 1134 [2011]). As for the psychologist, he testified thatvisitation would be detrimental because the child had no attachment to the father and,given his young age, would be traumatized by being told that his stepfather is not his realfather. The psychologist evaluated the child solely for purposes of the litigation,however, and did not have a therapeutic relationship with him. Further, the psychologistbased his opinion on his belief that the child had no contact with the father during thefirst six months of his life and only minimal contact thereafter. The father established thatthe mother did not provide the psychologist with an accurate history of his relationshipwith the child, and Family Court—crediting the father'stestimony—discounted the psychologist's opinion as being based solely on themother's version of events, without any communication with the father. Thus, althoughthe award of visitation is contrary to the opinion of the psychologist, Family Court actedwithin its discretion in reaching a conclusion based on its credibility determinations andconsideration of all the evidence (see Matter of Engwer v Engwer, [*3]307 AD2d 504, 505 [2003]; Matter of Perry vPerry, 194 AD2d 837, 838 [1993]).
Nor are we persuaded by the mother's contention that visitation should have beendenied based on the length of time that has elapsed since the father made any attempt tocontact the child. The father established that he exercised visitation under the 2011consent order but that his ability to see the child was often interrupted by claims that themother made to child protective services that were later determined to be unfounded, aswell as criminal charges initiated by the mother that were later dismissed. The fatherpresented testimony from his family members regarding his desire to be part of the child'slife and his ability to care for the child during his visits. The father also testified that hewas afraid to send cards to the mother because he believed that she had forged athreatening letter in his name and sent it to herself, and that any communication by himwould provide an opportunity for the mother to fabricate similarly offensive content andthen report him to the police or child protective services. Furthermore, although therewas a lapse of time between the expiration of the most recent order of protection and thefather's commencement of this proceeding, Family Court credited the father's testimonythat he was waiting for the outcome of his own mother's request for visitation becauseshe would have then been able to provide transportation for the child to see him if herpetition had been successful. Family Court also credited the father's testimony that thedelay in filing his petition was based on the problems that he encountered obtaining thenecessary information while incarcerated. In short, although the mother attempts toportray the father as having only limited contact with the child, the record supportsFamily Court's finding that this was due, at least in part, to the mother's efforts to thwartany contact.
While the child's young age, his lack of knowledge regarding who his real father isand the length of the father's prison sentence are factors to consider in determiningwhether visitation is in the child's best interests, they do not warrant a conclusion thatFamily Court abused its discretion in awarding visitation (see Matter of Culver vCulver, 82 AD3d at 1299). Family Court concluded that, although visitation may bedifficult at first because of the child's age and lack of knowledge about his father, it is inthe child's best interests to discover who his father is and address any issues that arecaused by that knowledge now, as opposed to allowing the mother to perpetuate thefiction that the stepfather is the child's father until some undetermined time in the futurewhen the child is older and becomes curious as to why he does not share his stepfather'slast name. In our view, Family Court's determination that counseling, gradual contact andthen visitation were in the child's best interests strikes an appropriate balance given thechild's young age and the child's lack of any knowledge of the father, and we find that itis supported by a sound and substantial basis in the record (see Matter of Telfer v Pickard,100 AD3d 1050, 1051 [2012]; Matter of Baker v Blanchard, 74 AD3d 1427, 1429[2010]).
Nevertheless, we also find merit to the mother's contention that 12 visits per year areexcessive based on the child's age, his lack of any memory of the father, the length of thefather's prison sentence and the child's lack of any recent experience with visits to acorrectional facility (see e.g.Matter of Granger v Misercola, 96 AD3d 1694, 1695 [2012], affd 21NY3d 86 [2013]; Matter of Culver v Culver, 82 AD3d at 1298-1299; Matterof Moore v Schill, 44 AD3d at 1123; Matter of Ellett v Ellett, 265 AD2d747, 748 [1999]). While such frequent visitation may be more appropriate if the fatherwere soon to be released, it is not warranted here given the fact that the earliest the fatherwill be released is 2027, when the child will be 18 years old. We will, therefore, remit thematter to Family Court for the fashioning of a new visitation schedule in accordance withthese considerations and to commence six months from the issuance of this order (see e.g. Matter of Seeley vSeeley, 119 AD3d 1164, 1166-1167 [2014]; Matter of Griffen v Evans,235 AD2d 720, 722 [1997]; Matter of Garcia v Doan, 132 AD2d 756, 758[1987], lv dismissed 70 NY2d 796 [1987]), but the number of visits are not toexceed four times per [*4]year until such time as there isan application for modification and the court determines that there has been a substantialchange in circumstances sufficient to warrant more frequent visits. Upon remittal, FamilyCourt may take into account the monthly reports of the counselor working with the childin order to determine the appropriate frequency of the visits. We decline to disturb theremaining aspects of Family Court's order except with respect to the timing of the eventsset forth therein. Inasmuch as the dates by which Family Court ordered certain events tooccur have passed while the stay has been in effect, we will modify the order to theextent of establishing new dates to apply to Family Court's schedule for thoseevents.
Peters, P.J., McCarthy and Garry, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as awarded petitioner monthlyvisitation; both the attorney for the child on this appeal and respondent are required toimmediately proceed with respect to the psychologists named in Family Court's order andin accordance with its terms, respondent is required to provide petitioner with the list ofproviders and releases for reports concerning the child within 30 days of the date of thisdecision, respondent is required to provide petitioner with written updates on the child'swell-being commencing 30 days after the date of this decision, petitioner is permitted tosend the child letters, cards and gifts commencing 90 days after the date of this decisionand petitioner's telephonic communication with the child will commence 120 days afterthe date of this decision; matter remitted to the Family Court of Warren County forfurther proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.
Footnote *:We granted the mother'smotion for a stay pending appeal.