Smith v. Stewart

Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for Petitioner–Appellant.

Paul B. Watkins, Fairport, for Respondent–Respondent.

Tanya J. Conley, Attorney for the Child, Rochester.

PRESENT: SMITH, J.P., DeJOSEPH, CURRAN, AND SCUDDER, JJ.

MEMORANDUM:In this proceeding pursuant to Family Court Act article 6, petitioner father appeals from an order that, inter alia, denied without prejudice his request for in-person visitation with the subject child at the correctional facility in which he is currently incarcerated. Contrary to petitioner's contention, we conclude that "a sound and substantial basis exist[s] in the record for the [Referee]'s determination that the visitation requested by petitioner would not be in the ... child's best interest[s] under the present circumstances" (Matter of Ellett v. Ellett, 265 A.D.2d 747, 748, 698 N.Y.S.2d 740 ).

It is well settled that "visitation 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 A.D.3d 1273, 1273, 930 N.Y.S.2d 133 [internal quotation marks omitted]; see Matter of Rulinsky v. West, 107 A.D.3d 1507, 1509, 969 N.Y.S.2d 268 ). Furthermore, " ‘[i]t 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 A.D.2d 935, 935, 715 N.Y.S.2d 818 ; see Matter of Cierra L.B. v.

8 N.Y.3d 805, 831 N.Y.S.2d 107, 863 N.E.2d 112 ).

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