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

105
CAF 13-00688
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF MICHAEL CARROLL,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

AMY CARROLL, RESPONDENT-RESPONDENT.
---------------------------------------
PETER J. DIGIORGIO, JR., ESQ., ATTORNEY
FOR THE CHILD, APPELLANT.


PETER J. DIGIORGIO, JR., ATTORNEY FOR THE CHILD, UTICA, APPELLANT PRO
SE.

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


     Appeal from an order of the Family Court, Oswego County (Kimberly
M. Seager, J.), entered March 26, 2013 in a proceeding pursuant to
Family Court Act article 6. The order granted petitioner supervised
visitation.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.

     Memorandum: Petitioner father, an inmate at a correctional
facility, commenced this Family Court Act article 6 proceeding seeking
visitation with the child, and the Attorney for the Child (AFC)
appeals from an order granting the petition. We reverse.

     We note at the outset that we reject the AFC’s contention that
Family Court should have granted the motion to dismiss the father’s
petition before holding a hearing on the child’s best interests (see
generally Matter of Tanner v Tanner, 35 AD3d 1102, 1103). We agree
with the AFC, however, that the court abused its discretion in
granting the father’s petition for visitation. “Although we recognize
that the rebuttable presumption in favor of visitation applies when
the parent seeking visitation is incarcerated . . . , we conclude that
[the AFC] rebutted the presumption by establishing by a preponderance
of the evidence that visitation with [the father] would be harmful to
the [child]” (Matter of Brown v Terwilliger, 108 AD3d 1047, 1048, lv
denied 22 NY3d 858).

     Here, the parties married while the father was in prison, and he
was still incarcerated at the time of the child’s birth. The father
                                 -2-                           105
                                                         CAF 13-00688

did not seek to establish paternity of the child until she almost was
five years old (see id.; Matter of Bougor v Murray, 283 AD2d 695,
696). Although respondent mother brought the child to visit the
father in prison shortly after she was born, the child has not visited
the father there since (see Matter of Ellett v Ellett, 265 AD2d 747,
748). The father contends that he formed a relationship with the
child while he was on parole for approximately three months in 2010,
but we note that, when he was on parole again in 2011, he attempted to
see the child only once. He conceded that he attempted to write to
the child only twice since she was born, and there is no evidence that
he attempted to communicate with the child by telephone. Indeed, the
father admitted that he did not have a relationship with the child
(see Matter of Johnson v Williams, 59 AD3d 445, 445). Further, while
the father testified that he believed his sister or mother might be
able to drive the child to the prison, the trip would require
approximately three hours of driving in total, and the child does not
have a relationship with those individuals (see Ellett, 265 AD2d at
747-748).

     In addition, a history of domestic violence is a factor to
consider in determining whether visitation would not be in the child’s
best interests (see Matter of Leonard v Pasternack-Walton, 80 AD3d
1081, 1081-1082; Matter of Morelli v Tucker, 48 AD3d 919, 920, lv
denied 10 NY3d 709), and here the father admitted to engaging in a
history of domestic violence against the mother, including engaging in
fist fights with her. The mother testified that the father choked her
during one such fight, when she was pregnant with the subject child.
The father also admitted that he violated an order to stay away from
the mother in 2011. We also note that the father admitted that he had
been in a fight with another inmate while in prison, and that he went
“on the run” from parole officers in 2010.

     While “the propriety of visitation is generally left to the . . .
discretion of Family Court[,] whose findings are accorded deference”
(Matter of Williams v Tillman, 289 AD2d 885, 885), we conclude that
the court’s determination that there was “no evidence . . . that
visitation would be harmful to [the child]” and that, therefore,
visitation was “necessary and appropriate” lacks a sound and
substantial basis in the record (cf. Matter of Tuttle v Mateo [appeal
No. 3], 121 AD3d 1602, 1603-1604; see generally Matter of Butler v
Ewers, 78 AD3d 1667, 1667-1668).




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
