Opinion
698 CAF 18–00747
07-31-2019
In the Matter of Desean T. KELLY, Petitioner–Appellant, v. Lorren BROWN, Respondent–Respondent.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR PETITIONER–APPELLANT. MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR RESPONDENT–RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR PETITIONER–APPELLANT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR RESPONDENT–RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, 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 father appeals from an order that, inter alia, denied his request for in-person visitation with the subject child at the correctional facility in which he is currently incarcerated. Contrary to the father's contention, we conclude that the determination of Family Court, made after a hearing, is supported by a sound and substantial basis in the record (see Matter of Rulinsky v. West , 107 A.D.3d 1507, 1509, 969 N.Y.S.2d 268 [4th Dept. 2013] ). Although " ‘[v]isitation with a noncustodial parent is presumed to be in a child's best interests even when the parent is incarcerated’ " ( Matter of Fewell v. Ratzel , 121 A.D.3d 1542, 1542, 993 N.Y.S.2d 608 [4th Dept. 2014] ), "the presumption may be rebutted when it is shown, ‘by a preponderance of the evidence, that visitation would be harmful to the child’ " ( id. , quoting Matter of Granger v. Misercola , 21 N.Y.3d 86, 92, 967 N.Y.S.2d 872, 990 N.E.2d 110 [2013] ; see Rulinsky , 107 A.D.3d at 1509, 969 N.Y.S.2d 268 ). Here, respondent mother established by a preponderance of the evidence that, under all the circumstances, "visitation would be harmful to the child's welfare" ( Granger , 21 N.Y.3d at 91, 967 N.Y.S.2d 872, 990 N.E.2d 110 ).
The mother established that the child, who was approximately 2½ years old at the time of the hearing, did not have a significant relationship with the father, who last saw the child when he was 15 months old (see e.g. Matter of Carroll v. Carroll , 125 A.D.3d 1485, 1486, 3 N.Y.S.3d 855 [4th Dept. 2015], l v denied 25 N.Y.3d 907, 10 N.Y.S.3d 527, 32 N.E.3d 964 [2015] ; Matter of Butler v. Ewers , 78 A.D.3d 1667, 1668, 910 N.Y.S.2d 831 [4th Dept. 2010] ; Matter of McCullough v. Brown , 21 A.D.3d 1349, 1349, 801 N.Y.S.2d 447 [4th Dept. 2005] ). The mother also established that the child had no relationship with the paternal relatives with whom he would have to travel more than two hours each way to visit the father in prison (see Butler , 78 A.D.3d at 1668, 910 N.Y.S.2d 831 ; see also Matter of Leary v. McGowan , 143 A.D.3d 1100, 1102, 40 N.Y.S.3d 208 [3d Dept. 2016] ).
We are mindful that the age of a child is a significant factor to consider in determining the issue of visitation (see Matter of Conklin v. Hernandez , 41 A.D.3d 908, 911, 837 N.Y.S.2d 419 [3d Dept. 2007] ), and the court properly considered the effects that visitations in prison might have on the child in light of his young age. It has been recognized that "the best interests of a child, and particularly a young child, may not be served by imposing in-person visits to a correctional facility. The atmosphere and setting of such visits may be traumatic to the child and his or her view of the parent" ( Matter of Benjamin OO. v. Latasha OO. , 170 AD3d 1394, 1396 [3d Dept. 2019], lv denied 33 N.Y.3d 909, 2019 WL 2588150 [June 25, 2019] ). Based on a consideration of all the relevant factors, we conclude that "the court properly determined ... that it was in the best interests of the child[ ] to delay visitation so that [he] could continue to grow and develop before commencing visitation with the[ ] father" ( McCullough , 21 A.D.3d at 1349, 801 N.Y.S.2d 447 ).
Contrary to the father's final contention, the court did not improperly delegate to the mother the court's authority to determine issues involving the child's best interests (cf. Matter of Hameed v. Alatawaneh , 19 AD3d 1135, 1136, 796 N.Y.S.2d 486 [4th Dept. 2005] ). The record demonstrates that the court "properly reserved the final decision to itself, and that it relied upon the record as a whole" in making a final determination to deny in-person visitation ( Matter of Hennelly v. Viger , 198 A.D.2d 224, 225, 603 N.Y.S.2d 168 [2d Dept. 1993] ).