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

940
CAF 13-01403
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF CHRIS SAWYER FEWELL,
PETITIONER-APPELLANT,

                    V                              MEMORANDUM AND ORDER

STACEY A. RATZEL, RESPONDENT-RESPONDENT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR PETITIONER-APPELLANT.

GERARD R. ROUX, II, EAST AMHERST, FOR RESPONDENT-RESPONDENT.

LYLE T. HAJDU, ATTORNEY FOR THE CHILD, LAKEWOOD.


     Appeal from an order of the Family Court, Allegany County (Thomas
P. Brown, J.), entered July 24, 2013 in a proceeding pursuant to
Family Court Act article 6. The order dismissed the petition seeking
visitation.

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

     Memorandum: In this proceeding pursuant to article 6 of the
Family Court Act, petitioner father appeals from an order that denied
his petition to modify a prior consent order of custody and visitation
with respect to the parties’ eight-year-old son. The father was
sentenced in 2006 to a determinate term of imprisonment of 20 years
based upon his conviction of rape in the first degree (Penal Law §
130.35) and criminal sexual act in the first degree (§ 130.50).
Although Family Court concluded that the father had demonstrated a
change in circumstances, it nevertheless determined based on the
evidence presented at the hearing, including the uncontroverted
testimony of the child’s psychologist, that it was not in the best
interests of the child to have visitation with the father at the
correctional facility. We affirm.

     It is well settled that “[v]isitation with a noncustodial parent
is presumed to be in a child’s best interests even when the parent is
incarcerated” (Matter of Chambers v Renaud, 72 AD3d 1433, 1434), but
the presumption may be rebutted when it is shown, “by a preponderance
of the evidence, that visitation would be harmful to the child”
(Matter of Granger v Misercola, 21 NY3d 86, 92). The court should
consider the “totality of the circumstances” in determining whether
visitation would be harmful to the child (Matter of Culver v Culver,
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                                                         CAF 13-01403

82 AD3d 1296, 1297, appeal dismissed 16 NY3d 884, lv denied 17 NY3d
710). Here, the record demonstrates that the father “failed to
establish a meaningful relationship with the child” (Matter of Butler
v Ewers, 78 AD3d 1667, 1667). The father had been incarcerated since
the child was in utero, he had never met the child, and the child
indicated that he did not want to visit the father. Furthermore, the
child’s psychologist testified that visitation would be detrimental to
the child and that the father was “a total stranger” to the child (see
Matter of Lonobile v Betkowski, 295 AD2d 994, 994-995). We conclude
that there is “a sound and substantial basis in the record” to support
the court’s determination (Matter of Nicole J.R. v Jason M.R., 81 AD3d
1450, 1451, lv denied 17 NY3d 701).




Entered:   October 3, 2014                     Frances E. Cafarell
                                               Clerk of the Court
