Smith v. Smith

• Decision Date: 14 February 2012
• Citation: 92 A.D.3d 791,938 N.Y.S.2d 601,2012 N.Y. Slip Op. 01262
• Parties: In the Matter of Roy SMITH, appellant, v. Charmain SMITH, respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01262

92 A.D.3d 791

938 N.Y.S.2d 601

In the Matter of Roy SMITH, appellant,

v.Charmain SMITH, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 14, 2012.

Jeffrey C. Bluth, Brooklyn, N.Y., for appellant.

Kenneth M. Tuccillo, Hastings–on–Hudson, N.Y., for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter and Barbara H. Dildine of counsel), attorney for the children.WILLIAM F. MASTRO, A.P.J., DANIEL D. ANGIOLILLO, RANDALL T. ENG, and JEFFREY A. COHEN, JJ.

In a visitation proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Kings County (Graham, J.), dated October 26, 2010, as, without a hearing, granted his petition for visitation only to the extent of awarding him telephone contact with the subject children once per month and awarding him visitation in person once per year if he paid the sum of $250 to the mother, and, in effect, prohibited him from filing another petition for visitation for a period of three years.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof, in effect, prohibiting the father from filing another petition for visitation for a period of three years; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

“The court has discretion to determine what, if any, visitation is in the best interests of the child” ( Matter of Franklin v. Richey, 57 A.D.3d 663, 664, 869 N.Y.S.2d 187 [internal quotation marks omitted]; see Matter of Mera v. Rodriguez, 73 A.D.3d 1069, 899 N.Y.S.2d 893). “This determination will not be set aside unless it lacks a substantial ... basis in the record” ( Matter of Franklin v. Richey, 57 A.D.3d at 664, 869 N.Y.S.2d 187 [internal quotation marks omitted]; see Matter of Wispe v. Leandry, 63 A.D.3d 853, 880 N.Y.S.2d 497; Matter of Thompson v. Yu–Thompson, 41 A.D.3d 487, 488, 837 N.Y.S.2d 313). “While it is true that a parent's incarceration does not, by itself, render visitation inappropriate, visitation will be denied where there is substantial evidence that such visitation would be detrimental to the child” ( Matter of Morales v. Bruno, 29 A.D.3d 1001, 816 N.Y.S.2d 536 [citations omitted]; see Matter of Rodriquez v. Van Putten, 309 A.D.2d 807, 765 N.Y.S.2d 796).

Here, there is a sound and substantial basis in the record to establish that, under the circumstances, including the logistical difficulties and expense in arranging for the children to travel the significant distance to visit the father in person, the parties' relative lack of resources, and the incarcerated father's refusal to seek a transfer to a facility closer to the children, visitation with the father in person is not in the children's best interests unless the father contributes toward the cost of such visitation ( see Matter of Franklin v. Richey, 57 A.D.3d at 664, 869 N.Y.S.2d 187; Matter of Conklin v. Hernandez...