        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

830.1
CAF 12-00063
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF SHAWN G. GRANGER,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DANIELLE D. MISERCOLA, RESPONDENT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
RESPONDENT-APPELLANT.

CHARLES J. GREENBERG, BUFFALO, FOR PETITIONER-RESPONDENT.

MELISSA L. KOFFS, ATTORNEY FOR THE CHILD, CHAUMONT, FOR TRENTIN T.M.


     Appeal from an order of the Family Court, Jefferson County (Peter
A. Schwerzmann, A.J.), entered December 7, 2011 in a proceeding
pursuant to Family Court Act article 6. The order granted the
petition for visitation.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner father commenced this Family Court Act
article 6 proceeding seeking visitation with the parties’ child at the
correctional facility where he was then incarcerated. Family Court
granted the father’s petition and, inter alia, awarded him “one four
hour visit during the months of January and April 2012 and then every
other month commencing in July 2012.” We affirm.

     “ ‘It 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 AD2d 935; see Matter
of Cierra L.B. v Richard L.R., 43 AD3d 1416, 1416-1417). “Unless
there is a compelling reason or substantial evidence that visitation
with an incarcerated parent is detrimental to a child’s welfare, such
visitation should not be denied” (Thomas, 277 AD2d 935; see Matter of
Rhynes v Rhynes, 242 AD2d 943, 943). “[V]isitation 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 AD3d 1273, 1273 [internal
quotation marks omitted]).

     Contrary to the contentions of respondent mother and the Attorney
                                 -2-                           830.1
                                                         CAF 12-00063

for the Child, we conclude that there is a sound and substantial basis
in the record to support the court’s determination to grant the father
visitation with the child in accordance with the schedule set forth in
the order (see Matter of Culver v Culver, 82 AD3d 1296, 1298-1299,
appeal dismissed 16 NY3d 884, lv denied 17 NY3d 710; Matter of Baker v
Blanchard, 74 AD3d 1427, 1428-1429; Rhynes, 242 AD2d at 943-944; cf.
Matter of Albanese v Albanese, 44 AD3d 1117, 1120; see generally
Matter of Nicole J.R. v Jason M.R., 81 AD3d 1450, 1451, lv denied 17
NY3d 701). In reaching that conclusion, we defer to the court’s
opportunity to assess firsthand the character and credibility of the
parties (see Helles, 87 AD3d at 1273-1274; Nicole J.R., 81 AD3d at
1451).

     The record establishes that the father was convicted of various
felony drug charges, for which he was sentenced to an aggregate term
of incarceration of eight years. Prior to his incarceration, the
father was present for the birth of the child, and he testified that,
during the six or seven months in which he was not incarcerated
following the child’s birth, he visited with the child on
approximately 12 occasions. Although the father has not seen the
child since the father was incarcerated, at which time the child was
only a year old, the father has repeatedly requested that the mother
transport the child to the correctional facility for visitation, and
he has attempted to maintain a relationship with the child over the
telephone and by sending letters, cards, and gifts. We thus conclude
that the father made, and continues to make, efforts to establish a
relationship with the child, and it cannot be said that he is “a
stranger to the child” (Culver, 82 AD3d at 1299 [internal quotation
marks omitted]).

     We recognize that the three-year-old child will be required to
travel a distance of over two hours in both directions to effectuate
visitation. Nevertheless, the fact “[t]hat the child is young and
will likely need to travel a considerable distance between [his]
residence and the father’s prison does not necessarily preclude
visitation” (id.). We note that the father has arranged for his
mother and sisters to transport the child for visitation. Although it
is apparent from the record that the child is not familiar with those
members of the father’s family, making them “virtual strangers”
(Matter of Goldsmith v Goldsmith, 68 AD3d 1209, 1210), the court
purposely scheduled limited visits during the initial six-month period
to afford the parties the opportunity to familiarize the child with
the father’s mother and sisters, and the court thus fashioned a
visitation plan that was “ ‘viable and workable’ ” (Culver, 82 AD3d at
1299). The record further establishes that the father’s earliest
release date is not until September 2016, and we agree with the court
that such a long period of separation could be detrimental to the
established relationship between the father and the child.

     Finally, although it appears that the father was transferred to
another correctional facility after the court issued its
determination, which the mother alleges will lengthen the distance
that the child must travel to effectuate visitation, we note that “any
change in circumstance is more appropriately the subject of a
                                 -3-                           830.1
                                                         CAF 12-00063

modification petition” (Matter of Moore v Schill, 44 AD3d 1123, 1123).




Entered:   June 29, 2012                       Frances E. Cafarell
                                               Clerk of the Court
