Opinion
80 CAF 19-00812
02-05-2021
In the Matter of John SANTORO, Petitioner-Appellant, v. Amber GUGGI, Respondent-Respondent. In the Matter of Amber Guggi, Petitioner-Respondent, v. John Santoro, Respondent-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT. STEPHANIE N. DAVIS, OSWEGO, ATTORNEY FOR THE CHILD.
CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT.
STEPHANIE N. DAVIS, OSWEGO, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner-respondent father filed a modification petition and violation petitions and respondent-petitioner mother filed a modification petition and violation petition. Pursuant to a 2006 order on consent that was subsequently modified by a 2010 order on consent, the mother had sole custody of the subject child, the father had such visitation as agreed by the parties, and the father was permitted to write letters to the child. The father now appeals from an order that, inter alia, denied his petition seeking, among other things, in-person visitation with the child at the correctional facility in which he is currently incarcerated, denied his violation petitions, and granted, in part, the petition of the mother by limiting the father's access to the child to writing one letter per month.
With respect to the father's contention that Family Court should have granted his petition insofar as he sought in-person visitation with the child, it is well settled that "visitation with a noncustodial parent is presumed to be in the best interests of the child, even when the parent seeking visitation is incarcerated" ( Matter of Bloom v. Mancuso , 175 A.D.3d 924, 926, 108 N.Y.S.3d 575 [4th Dept. 2019], lv denied 34 N.Y.3d 905, 2019 WL 6873492 [2019] ; see Matter of Granger v. Misercola , 21 N.Y.3d 86, 90-91, 967 N.Y.S.2d 872, 990 N.E.2d 110 [2013] ). That presumption, however, is rebuttable, and a demonstration by a preponderance of the evidence "that such visitation would be harmful to the child will justify denying such a request" ( Granger , 21 N.Y.3d at 91, 967 N.Y.S.2d 872, 990 N.E.2d 110 [internal quotation marks omitted]; see Matter of Rulinsky v. West , 107 A.D.3d 1507, 1509, 969 N.Y.S.2d 268 [4th Dept. 2013] ). Although the court did not make a finding with respect to whether the mother rebutted the presumption, the "record is adequate to enable us to determine that the mother established by a preponderance of the evidence that, under all the circumstances, ‘visitation would be harmful to the child's welfare’ " ( Rulinsky , 107 A.D.3d at 1509, 969 N.Y.S.2d 268, quoting Granger , 21 N.Y.3d at 91, 967 N.Y.S.2d 872, 990 N.E.2d 110 ).
We further conclude that a sound and substantial basis in the record supports the court's determination to limit the father's access to the child to writing one letter per month (see generally Matter of Smith v. Stewart , 145 A.D.3d 1534, 1535, 44 N.Y.S.3d 297 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1730869 [2017] ; Matter of Brown v. Terwilliger , 108 A.D.3d 1047, 1048, 968 N.Y.S.2d 779 [4th Dept. 2013], lv denied 22 N.Y.3d 858, 2013 WL 6596950 [2013] ). The record includes, among other things, evidence that the father had virtually no relationship with the child prior to his most recent incarceration (see Bloom , 175 A.D.3d at 926, 108 N.Y.S.3d 575 ), and the letters he wrote to her in the past contained numerous derogatory remarks about the mother, which the child resented. Also, as noted by the court in its written decision, the child strongly preferred to have no contact with the father, and "[a]lthough the [c]ourt is ... not required to abide by the wishes of a child to the exclusion of the other factors in the best interests analysis ..., the wishes of the [14]-year-old child are ... entitled to great weight where, as here, the age and maturity [of the child] would make [her] input particularly meaningful" ( Matter of Alwardt v. Connolly , 183 A.D.3d 1252, 1253-1254, 122 N.Y.S.3d 855 [4th Dept. 2020], lv denied 35 N.Y.3d 910, 2020 WL 5047289 [2020] [internal quotation marks omitted]). The child was aware through her own internet searches of the crimes towards women for which defendant was incarcerated, and the child was afraid of the father because of the disturbing nature of those crimes (see Matter of Dibble v. Valachovic , 141 A.D.3d 774, 775-776, 34 N.Y.S.3d 727 [3d Dept. 2016] ).
The father next contends that the court erred in dismissing his violation petitions. We reject that contention and conclude that "the court properly determined that [the father] failed to establish by clear and convincing evidence that the mother willfully violated the terms of the custody order[s] with respect to his visitation" ( Matter of Unczur v. Welch , 159 A.D.3d 1405, 1405, 72 N.Y.S.3d 680 [4th Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2924938 [2018] ). We have reviewed the father's remaining contentions and conclude that they are either unpreserved or without merit.