Opinion
12-23-2016
In the Matter of Gerald SMITH, Petitioner–Appellant, v. Tonya STEWART, Respondent–Respondent.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for Petitioner–Appellant. Paul B. Watkins, Fairport, for Respondent–Respondent. Tanya J. Conley, Attorney for the Child, Rochester.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for Petitioner–Appellant.
Paul B. Watkins, Fairport, for Respondent–Respondent.
Tanya J. Conley, Attorney for the Child, Rochester.
PRESENT: SMITH, J.P., DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:In this proceeding pursuant to Family Court Act article 6, petitioner father appeals from an order that, inter alia, denied without prejudice his request for in-person visitation with the subject child at the correctional facility in which he is currently incarcerated. Contrary to petitioner's contention, we conclude that "a sound and substantial basis exist[s] in the record for the [Referee]'s determination that the visitation requested by petitioner would not be in the ... child's best interest[s] under the present circumstances" (Matter of Ellett v. Ellett, 265 A.D.2d 747, 748, 698 N.Y.S.2d 740 ).
It is well settled that "visitation decisions are generally left to Family Court's sound discretion, requiring reversal only where the decision lacks a sound and substantial basis in the record" (Matter of Helles v. Helles, 87 A.D.3d 1273, 1273, 930 N.Y.S.2d 133 [internal quotation marks omitted]; see Matter of Rulinsky v. West, 107 A.D.3d 1507, 1509, 969 N.Y.S.2d 268 ). Furthermore, " ‘[i]t is generally presumed to be in a child's best interest[s] to have visitation with his or her noncustodial parent[,] and the fact that a parent is incarcerated will not, by itself, render visitation inappropriate’ " (Matter of Thomas v. Thomas, 277 A.D.2d 935, 935, 715 N.Y.S.2d 818 ; see Matter of Cierra L.B. v.
Richard L.R., 43 A.D.3d 1416, 1416–1417, 842 N.Y.S.2d 664 ). Nevertheless, "where, as here, domestic violence is alleged, ‘the [Referee] must consider the effect of such domestic violence upon the best interests of the child’ " (Matter of Moreno v. Cruz, 24 A.D.3d 780, 781, 806 N.Y.S.2d 702, lv. denied 6 N.Y.3d 712, 816 N.Y.S.2d 747, 849 N.E.2d 970, quoting Domestic Relations Law § 240[1] ; see Matter of Chilbert v. Soler, 77 A.D.3d 1405, 1406, 907 N.Y.S.2d 757, lv. denied 16 N.Y.3d 701, 2011 WL 67515 ). Furthermore, petitioner presented no plan to accomplish the requested visitation, and the record establishes that none of his friends or family members have offered to facilitate transportation of the child (cf. Matter of Granger v. Misercola, 96 A.D.3d 1694, 1695, 947 N.Y.S.2d 736, affd. 21 N.Y.3d 86, 967 N.Y.S.2d 872, 990 N.E.2d 110 ). In addition, the record supports the Referee's determination that respondent does not have a driver's license or the financial resources to provide transportation for the child. Consequently, we conclude that a sound and substantial basis in "[t]he record supports the [Referee]'s conclusion that petitioner had no reasonable, feasible plan to facilitate the requested visitation and that compelling [respondent] to undertake the travel arrangements and have contact with petitioner was not reasonable or appropriate. Notably, the denial was not premised merely on an arbitrary opposition to visitation or its cost and inconvenience ... but, rather, on the unavailability of any appropriate arrangement to accomplish physical visitation under the[ ] circumstances" (Matter of Conklin v. Hernandez, 41 A.D.3d 908, 911, 837 N.Y.S.2d 419 ; see Matter of Anthony MM. v. Rena LL., 34 A.D.3d 1171, 1172, 827 N.Y.S.2d 707, lv. denied 8 N.Y.3d 805, 831 N.Y.S.2d 107, 863 N.E.2d 112 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.