Opinion
2013-06-7
In the Matter of Michelle CORMIER, Petitioner, v. Roxanne CLARKE, Respondent, et al., Respondent. In the Matter of Roxanne Clarke, Petitioner–Appellant, v. Christopher Clarke, I, Respondent, and Michelle K. Cormier, Respondent–Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for Petitioner–Appellant. Linda M. Campbell, Syracuse, for Respondent–Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for Petitioner–Appellant. Linda M. Campbell, Syracuse, for Respondent–Respondent.
Jennifer L. Rosenberg, Attorney for the Child, Syracuse.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
As relevant to this appeal, respondent-petitioner, who is the paternal grandmother and primary physical custodian of the subject child (grandmother), filed a petition seeking to modify a prior order of custody and visitation by suspending visitation with the mother at the correctional facilitywhere the mother is incarcerated. Family Court refused to suspend visitation with the mother, but reduced the frequency of that visitation. The grandmother appeals, and we affirm.
Even assuming, arguendo, that the grandmother established “ ‘a change in circumstances sufficient to warrant an inquiryinto whether the best interests of the [child] warranted a change in custody’ ” (Matter of Dingeldey v. Dingeldey, 93 A.D.3d 1325, 1326, 940 N.Y.S.2d 760;see Griffin v. Griffin, 104 A.D.3d 1270, 1271, 961 N.Y.S.2d 677;Matter of Anderson v. Roncone, 81 A.D.3d 1268, 1268, 916 N.Y.S.2d 539,lv. denied16 N.Y.3d 712, 2011 WL 1675283), we conclude that, contrary to the grandmother's contention, visitation with the mother at the correctional facility is in the child's best interests. There is a presumption that visitation with the noncustodial parent is in the child's best interests ( see Matter of Granger v. Misercola, 21 N.Y.3d 86, ––––, 967 N.Y.S.2d 872, 990 N.E.2d 110; Matter of Nathaniel T., 97 A.D.2d 973, 974, 468 N.Y.S.2d 768), and a “parent's incarceration, by itself, does not vitiate” that presumption (Matter of Flood v. Flood, 63 A.D.3d 1197, 1198, 880 N.Y.S.2d 748;see Matter of Fewell v. Ratzel, 99 A.D.3d 1237, 1237, 951 N.Y.S.2d 445). “Unless there is a compelling reason or substantial evidence that visitation with an incarcerated parent is detrimental to a child's welfare, such visitation should not be” suspended (Matter of Thomas v. Thomas, 277 A.D.2d 935, 935, 715 N.Y.S.2d 818). We conclude that the grandmother failed to establish by a preponderance of the evidence that visitation with the mother would be detrimental to the child, and thus she did not overcome the presumption that visitation with the mother is in the child's best interests ( see Granger, 21 N.Y.3d at ––––, 967 N.Y.S.2d 872, 990 N.E.2d 110). We therefore conclude that the court's decision had a sound and substantial basis in the record ( see generally Granger, 96 A.D.3d 1694, 1695, 947 N.Y.S.2d 736,affd.21 N.Y.3d 86).
Additionally, the grandmother's contention that the court failed to conduct a Lincoln hearing is unpreserved for our review inasmuch as she did not request such a hearing ( see Matter of Knuth v. Westfall, 72 A.D.3d 1642, 1642, 899 N.Y.S.2d 693). “In any event, based on the child's young age, we perceive no abuse of discretion in the court's failure to conduct a Lincoln hearing” (Matter of Thillman v. Mayer, 85 A.D.3d 1624, 1625, 926 N.Y.S.2d 779).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.