                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 20, 2016                    520826
____________________________________

In the Matter of KRYSTAL R.
   STAFF,
                    Respondent,
      v
                                             MEMORANDUM AND ORDER
FRANK E. GELUNAS,
                     Appellant.

(And Two Other Related Proceedings.)
____________________________________


Calendar Date:   September 13, 2016

Before:   McCarthy, J.P., Garry, Devine, Clark and Mulvey, JJ.

                              __________


     Christopher A. Pogson, Binghamton, for appellant.

     John M. Scanlon, Binghamton, for respondent.

     Andrew F. Bailey, Binghamton, attorney for the children.

                              __________


Garry, J.

      Appeal from an order of the Family Court of Broome County
(Young, J.), entered March 10, 2015, which, among other things,
granted petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, for custody of the parties' children.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of three children (born
in 2004, 2008 and 2011). In June 2014, the mother filed a
petition requesting sole custody of the children due to the
father's incarceration in the Broome County Correctional
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Facility.1 The father then filed two petitions seeking
visitation and modification of the existing custody arrangement
by granting custody to the maternal grandmother during his
incarceration. Family Court (Charnetsky, J.) issued a temporary
order granting sole custody to the mother, with parenting time
for the father as the parties were able to agree. Thereafter,
Family Court (Young, J.) dismissed the father's petitions without
prejudice on procedural grounds. Following a fact-finding
hearing, the court awarded sole custody to the mother, directed
that any contact between the father and children by phone or
visit would occur as agreed between the parties, directed the
mother to deliver mail to the children and permit them to write
to the father, and reserved the father's right to seek
modification upon his release from incarceration. The father
appeals.

      The father claims that, in view of the mother's stated
opposition to visitation, Family Court's award of parenting time
and telephone contact as agreed upon between the parties – which
lacks a schedule or any other requirement for such contact to
occur – is tantamount to a denial of visitation. We agree, and
further find that the record wholly lacks any sound and
substantial basis for this limitation on the father's access to
the children.

      In general, the law presumes that shared parenting, or
visitation, between a child and a noncustodial parent is in the
child's best interests. Unless the presumption is rebutted by
evidence that visitation would be harmful to the child, "Family
Court is required to structure a schedule which results in
frequent and regular access by the noncustodial parent. The
court's authority in this respect can no more be delegated to one
of the parties than it can be to a child" (Matter of William BB.
v Susan DD., 31 AD3d 907, 908 [2006] [internal quotation marks
and citations omitted]). The presumption applies with equal
force to incarcerated parents, who are entitled to an appropriate


     1
        Both parties asserted that they had an order of joint
custody, but no such order was ever located; the matter was
ultimately treated as an initial proceeding.
                               -3-                520826

schedule of contact with their children unless "it is
demonstrated that under all the circumstances visitation would be
harmful to the child[ren's] welfare, or that the right to
visitation has been forfeited" (Matter of Granger v Misercola, 21
NY3d 86, 91 [2013]; see Matter of Kadio v Volino, 126 AD3d 1253,
1254 [2015]; Matter of Flood v Flood, 63 AD3d 1197, 1198 [2009]).

      There is no such evidence upon the record here. The
undisputed testimony established that the father and children had
frequent, regular contact and enjoyed a positive relationship
before his incarceration, and the attorney for the children
stated that the children wished to have continued contact with
him.2 The father, who had been incarcerated for approximately 18
months at the time of the hearing, had pleaded guilty to a charge
of burglary in the third degree, was awaiting trial on other
property-related charges in approximately three months and
expected to be transferred to state prison thereafter for a
period of somewhere between one and eight years. He testified
that he had visited the children on a daily basis before his
incarceration and had "[seen] them every day of their lives."
After his incarceration, the mother had initially been agreeable
to visits at the correctional facility, but later became
unwilling to permit visits, and the father testified that she
stopped answering telephone calls when he attempted to speak with
the children. He stated that he had sent cards and messages to
the children but had received no response. The father testified
that the paternal grandfather was available to provide
transportation for visits if the mother was unable to do so.3


     2
        The same attorney for the children who had represented
the children in Family Court did so upon this appeal. The brief
submitted on the children's behalf supports the court's
determination making visits and telephone contact dependent upon
the mother's agreement. There was no appearance for oral
argument, and, thus, no opportunity for inquiry; notably,
however, the brief does not indicate that there had been any
change in the children's wishes.
     3
        The grandfather did not appear on the hearing date, but
this potential was not apparently explored or developed in a
                              -4-                520826

      At the outset of the hearing, the mother's counsel advised
Family Court that the mother was opposed to visitation at the
correctional facility. No reason for this opposition was
provided at any time. In her testimony, the mother confirmed
that the father had seen the children daily before his
incarceration, with no suggestion that any problems had later
developed in his relationship with the children or that visits
would be detrimental to them in any way. She testified that she
was unwilling to transport the children for visits, with no
reason stated.4 As to telephone communication, she testified
that she "wouldn't mind" if the father called the children, but
that she would "rather not be involved," and "[i]f there could be
a mutual person that he could call to talk to them if they wanted
to talk to him that'd be fine." Again, no reason for her
reluctance was provided.

      In view of the mother's stated opposition to visits and
unwillingness to facilitate contact between the father and the
children, and in the absence of any showing that visits would be
harmful to the children, it was improper for Family Court to


meaningful manner by either counsel for the father or the
attorney for the children. Upon this appeal, counsel for the
mother offers sharp criticism for the father because the
grandfather failed to take the appropriate legal steps to obtain
authority for transporting the children to the local facility;
this would appear to be a task with which legal assistance would
be appropriate.
    4
        The mother's counsel indicated that there were
restrictions on the mother's ability to transport the children to
the local correctional facility because she was on probation.
Family Court and the parties apparently accepted this
representation, as well as references to other visitation
restrictions allegedly imposed by the correctional facility.
However, nothing in the record provides information about the
restrictions, nor does it appear that there was consideration as
to whether such alleged restrictions would continue to affect
visitation arrangements after the father's impending transfer to
state prison.
                              -5-                520826

delegate its authority to the mother by making the father's
access to the children contingent upon her agreement (see Matter
of Taylor v Jackson, 95 AD3d 1604, 1605 [2012]). The court's
brief bench decision set forth no reason for limiting the
father's access in this fashion and made no findings as to
whether visitation with the father was in the children's best
interests. This Court has the authority to correct such
deficiencies by exercising our independent review power (see
Matter of Knight v Knight, 92 AD3d 1090, 1091 [2012]; compare
Matter of McGovern v McGovern, 58 AD3d 911, 915 [2009]). Upon
review, we find the record sufficiently complete to permit a
determination that it is in the children's best interests to have
regular telephone contact and some reasonable level of in-person
parenting time with the father.

      From the record, it appears that an appropriate order
reflecting the children's best interests would have directed a
schedule of visitation at the local correctional facility, with
transportation arrangements to be the father's responsibility,
and also established a method and schedule for consistent
telephone communication, together with the mail contact
privileges that Family Court did direct (see e.g. Matter of
Telfer v Pickard, 100 AD3d 1050, 1051 [2012]; Matter of Culver v
Culver, 82 AD3d 1296, 1299-1300 [2011], appeal dismissed 16 NY3d
884, lv denied 17 NY3d 710 [2011]; Matter of Lewis v Lowney, 296
AD2d 624, 625 [2002]). The order should further have provided
the parties with the right to seek modification of the in-person
visitation schedule, if necessary for logistical reasons,
following the father's expected transfer from the local
correctional facility to state prison. However, in view of the
time that has passed since the fact-finding hearing and the
anticipated changes in the father's incarceration status in the
interim, the record does not now permit a determination of the
appropriate arrangements. Accordingly, the matter must be
remitted to Family Court for a further hearing, for the purpose
of obtaining updated information and the crafting of an order
that will provide the father with access to the children
consistent with their best interests. In view of this
determination, we do not address the father's remaining
contentions.
                              -6-                  520826

     McCarthy, J.P., Devine, Clark and Mulvey, JJ., concur.



      ORDERED that the order is modified, on the law and the
facts, without costs, by reversing so much thereof as granted
visitation and telephone contact with the children to respondent
as agreed upon between the parties; matter remitted to the Family
Court of Broome County for further proceedings not inconsistent
with this Court's decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
