                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 26, 2015                     518400
________________________________

In the Matter of DAVID M.
   KADIO,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

VANESSA VOLINO, Now Known as
   VANESSA SIMONS,
                    Appellant.
________________________________


Calendar Date:    January 14, 2015

Before:    Peters, P.J., McCarthy, Garry and Rose, JJ.

                              __________


     Cynthia Feathers, Glens Falls, for appellant.

     Michelle Rosien, Philmont, for respondent.

      Albert F. Lawrence, Greenfield Center, attorney for the
child.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Warren County
(Breen, J.), entered January 6, 2014, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article 6,
to modify a prior order of custody and visitation.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the unmarried parents of a child
(born in 2009). The parties met while the mother was visiting
her brother, an inmate at the same correctional facility where
the father was incarcerated. The parties dated upon the father's
release, but he was again incarcerated on a parole violation when
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the child was born in December 2009. The mother took the child
to visit the father while he was in prison and, upon his release
in May 2010, the father lived with the mother and child until
September 2010. The father then petitioned for visitation in
October 2010, and a January 2011 consent order awarded the mother
sole custody of the child with the father having unsupervised
visitation on alternating weekends and a weekly midweek
visitation. Following the consent order, the parties'
interactions were tumultuous, including multiple reports to the
police and child protective services, various orders of
protection and additional periods of incarceration for the
father. The father last exercised visitation with the child in
April 2011, when the child was approximately 15 months old. In
June 2011, the father pleaded guilty to burglary in the second
degree and he was sentenced to an aggregate prison term of 16
years to life. Pursuant to an order of protection entered on
consent, the father was precluded from having any contact with
the child or the mother from August 2011 until August 2012. The
mother has since married and has two children with her husband,
whom the child believes is his father. The mother has promoted
this misconception and has no plan to inform the child about the
father.

      The father commenced this proceeding in February 2013
seeking to modify the prior consent order to allow visitation
with the child at the facility where he is incarcerated. The
mother opposed the application on the grounds that it would be
too traumatic for the child to find out who his real father is
and to visit him in a prison setting. Following a hearing,
Family Court concluded that visitation would be in the child's
best interests and fashioned a schedule requiring the child to
receive counseling before beginning weekly telephone contact and
then monthly visits with the father. The court ordered the
mother to arrange for the transportation of the child to the
father's correctional facility, which is approximately two hours
from her residence, and the father was directed to pay her
mileage to help defray the cost of transportation. The mother
appeals.1


    1
        We granted the mother's motion for a stay pending appeal.
                              -3-                518400

      We begin our review with the well-established principle
that visitation with a noncustodial parent, including an
incarcerated parent, is presumed to be in the best interests of
the child (see Matter of Joshua SS. v Amy RR., 112 AD3d 1159,
1160 [2013], lv denied 22 NY3d 863 [2014]; Matter of Culver v
Culver, 82 AD3d 1296, 1297 [2011], lv dismissed 16 NY3d 884
[2011], lv denied 17 NY3d 710 [2011]; Matter of Chambers v
Renaud, 72 AD3d 1433, 1444 [2010]). The presumption may be
overcome, however, upon a showing, by a preponderance of the
evidence, that visitation would be harmful to the child's welfare
or not in the child's best interests (see Matter of Owens v
Chamorro, 114 AD3d 1037, 1039 [2014]; Matter of Joshua SS. v Amy
RR., 112 AD3d at 1160; Matter of Garraway v Laforet, 68 AD3d
1192, 1193 [2009]). "The propriety of visitation is left to the
sound discretion of Family Court and its findings, guided by the
best interests of the child, will not be disturbed unless they
lack a sound basis in the record" (Matter of Culver v Culver, 82
AD3d at 1297 [internal quotation marks and citation omitted]; see
Matter of Cole v Comfort, 63 AD3d 1234, 1235 [2009], lv denied 13
NY3d 706 [2009]; Matter of Moore v Schill, 44 AD3d 1123, 1123
[2007]).

      The mother contends that Family Court improperly
disregarded her concerns regarding the traumatic nature of prison
visitation for the child, as well as the concerns of the
psychologist she retained to evaluate the child. The attorney
for the child supports her argument. However, as noted by Family
Court, the mother's "strong opposition" to visitation is an
insufficient basis upon which to deny the father's request
(Matter of Culver v Culver, 82 AD3d at 1297 [internal quotation
marks and citation omitted]), and "[w]hile the position of the
attorney for the child is a factor to be considered, it is not
determinative" (Porcello v Porcello, 80 AD3d 1131, 1134 [2011]).
As for the psychologist, he testified that visitation would be
detrimental because the child had no attachment to the father
and, given his young age, would be traumatized by being told that
his stepfather is not his real father. The psychologist
evaluated the child solely for purposes of the litigation,
however, and did not have a therapeutic relationship with him.
Further, the psychologist based his opinion on his belief that
the child had no contact with the father during the first six
                              -4-                518400

months of his life and only minimal contact thereafter. The
father established that the mother did not provide the
psychologist with an accurate history of his relationship with
the child, and Family Court – crediting the father's testimony –
discounted the psychologist's opinion as being based solely on
the mother's version of events, without any communication with
the father. Thus, although the award of visitation is contrary
to the opinion of the psychologist, Family Court acted within its
discretion in reaching a conclusion based on its credibility
determinations and consideration of all the evidence (see Matter
of Engwer v Engwer, 307 AD2d 504, 505 [2003]; Matter of Perry v
Perry, 194 AD2d 837, 838 [1993]).

      Nor are we persuaded by the mother's contention that
visitation should have been denied based on the length of time
that has elapsed since the father made any attempt to contact the
child. The father established that he exercised visitation under
the 2011 consent order but that his ability to see the child was
often interrupted by claims that the mother made to child
protective services that were later determined to be unfounded,
as well as criminal charges initiated by the mother that were
later dismissed. The father presented testimony from his family
members regarding his desire to be part of the child's life and
his ability to care for the child during his visits. The father
also testified that he was afraid to send cards to the mother
because he believed that she had forged a threatening letter in
his name and sent it to herself, and that any communication by
him would provide an opportunity for the mother to fabricate
similarly offensive content and then report him to the police or
child protective services. Furthermore, although there was a
lapse of time between the expiration of the most recent order of
protection and the father's commencement of this proceeding,
Family Court credited the father's testimony that he was waiting
for the outcome of his own mother's request for visitation
because she would have then been able to provide transportation
for the child to see him if her petition had been successful.
Family Court also credited the father's testimony that the delay
in filing his petition was based on the problems that he
encountered obtaining the necessary information while
incarcerated. In short, although the mother attempts to portray
the father as having only limited contact with the child, the
                              -5-                518400

record supports Family Court's finding that this was due, at
least in part, to the mother's efforts to thwart any contact.

      While the child's young age, his lack of knowledge
regarding who his real father is and the length of the father's
prison sentence are factors to consider in determining whether
visitation is in the child's best interests, they do not warrant
a conclusion that Family Court abused its discretion in awarding
visitation (see Matter of Culver v Culver, 82 AD3d at 1299).
Family Court concluded that, although visitation may be difficult
at first because of the child's age and lack of knowledge about
his father, it is in the child's best interests to discover who
his father is and address any issues that are caused by that
knowledge now, as opposed to allowing the mother to perpetuate
the fiction that the stepfather is the child's father until some
undetermined time in the future when the child is older and
becomes curious as to why he does not share his stepfather's last
name. In our view, Family Court's determination that counseling,
gradual contact and then visitation were in the child's best
interests strikes an appropriate balance given the child's young
age and the child's lack of any knowledge of the father, and we
find that it is supported by a sound and substantial basis in the
record (see Matter of Telfer v Pickard, 100 AD3d 1050, 1051
[2012]; Matter of Baker v Blanchard, 74 AD3d 1427, 1429 [2010]).

      Nevertheless, we also find merit to the mother's contention
that 12 visits per year are excessive based on the child's age,
his lack of any memory of the father, the length of the father's
prison sentence and the child's lack of any recent experience
with visits to a correctional facility (see e.g. Matter of
Granger v Misercola, 96 AD3d 1694, 1695 [2012], affd 21 NY3d 86
[2013]; Matter of Culver v Culver, 82 AD3d at 1298-1299; Matter
of Moore v Schill, 44 AD3d at 1123; Matter of Ellett v Ellett,
265 AD2d 747, 748 [1999]). While such frequent visitation may be
more appropriate if the father were soon to be released, it is
not warranted here given the fact that the earliest the father
will be released is 2027, when the child will be 18 years old.
We will, therefore, remit the matter to Family Court for the
fashioning of a new visitation schedule in accordance with these
considerations and to commence six months from the issuance of
this order (see e.g. Matter of Seeley v Seeley, 119 AD3d 1164,
                              -6-                518400

1166-1167 [2014]; Matter of Griffen v Evans, 235 AD2d 720, 722
[1997]; Matter of Garcia v Doan, 132 AD2d 756, 758 [1987], appeal
dismissed 70 NY2d 796 [1987]), but the number of visits are not
to exceed four times per year until such time as there is an
application for modification and the court determines that there
has been a substantial change in circumstances sufficient to
warrant more frequent visits. Upon remittal, Family Court may
take into account the monthly reports of the counselor working
with the child in order to determine the appropriate frequency of
the visits. We decline to disturb the remaining aspects of
Family Court's order except with respect to the timing of the
events set forth therein. Inasmuch as the dates by which Family
Court ordered certain events to occur have passed while the stay
has been in effect, we will modify the order to the extent of
establishing new dates to apply to Family Court's schedule for
those events.

     Peters, P.J., McCarthy and Garry, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as awarded petitioner monthly
visitation; both the attorney for the child on this appeal and
respondent are required to immediately proceed with respect to
the psychologists named in Family Court's order and in accordance
with its terms, respondent is required to provide petitioner with
the list of providers and releases for reports concerning the
child within 30 days of the date of this decision, respondent is
required to provide petitioner with written updates on the
child's well-being commencing 30 days after the date of this
decision, petitioner is permitted to send the child letters,
cards and gifts commencing 90 days after the date of this
decision and petitioner's telephonic communication with the child
will commence 120 days after the date of this decision; matter
                              -7-                  518400

remitted to the Family Court of Warren County for further
proceedings not inconsistent with this Court's decision; and, as
so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
