Calendar Date: March 30, 2017
Kathryn S. Dell, Troy, for appellant.
Ravinder Dharmashot, Stormville, respondent pro se.
Katz, Troy, attorney for the child.
Before: Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Rensselaer County (Kehn,
J.), entered March 9, 2016, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act
article 6, for visitation with the parties' child.
(hereinafter the father) and respondent (hereinafter the
mother) are the parents of a son (born in 2013). Convicted of
robbery, the father has been incarcerated since April 2013,
approximately eight months before the child was born, and his
earliest release date is in 2020. In August 2015, the father
commenced the instant proceeding seeking in-person visitation
with the child. Soon thereafter, the mother petitioned for
sole legal and physical custody of the child and the parties
consented to an order granting the mother such relief.
Following a fact-finding hearing on the father's petition
for visitation, Family Court concluded that visitation would
be in the child's best interests and awarded the father
three visits per year at the correctional facility where he
is housed, with the father responsible for arranging and
facilitating the visits as well as associated transportation
expenses. The mother appeals.
fundamental that "[v]isitation with a noncustodial
parent, including an incarcerated parent, is presumed to be
in the best interests of the child" (Matter of
Robert SS. v Ashley TT., 143 A.D.3d 1193, 1193 
[internal quotation marks and citations omitted]; see
Matter of Granger v Misercola, 21 N.Y.3d 86, 90-91
; Matter of Samuels v Samuels, 144 A.D.3d
1415, 1415 ). To overcome this presumption, the party
opposing visitation must put forth "'compelling
reasons and substantial proof that visitation would be
harmful to the child'" (Matter of Duane FF.
[Harley GG.], 135 A.D.3d 1093, 1095 , lv
denied 27 N.Y.3d 904');">27 N.Y.3d 904 , quoting Matter of
Joshua SS. v Amy RR., 112 A.D.3d 1159, 1160 ,
lv denied 22 N.Y.3d 863');">22 N.Y.3d 863 ; see Matter of
Granger v Misercola, 21 N.Y.3d at 91; Matter of
Dibble v Valachovic, 141 A.D.3d 774, 775 ).
"The propriety of visitation is left to the sound
discretion of Family Court, guided by the best interests of
the child, and its decision will not be disturbed where it is
supported by a sound and substantial basis in the
record" (Matter of Samuels v Samuels, 144
A.D.3d at 1415-1416 [internal quotation marks and citations
omitted]; see Matter of Leary v McGowan, 143 A.D.3d
1100, 1101 ).
determining that limited in-person visitation would not be
detrimental to the child, Family Court gave consideration to
the fact that the child had some experience with visitation
in the prison setting and that the father, in turn, has
attempted to maintain a relationship with his son. The
testimony of the father, who was the sole witness to testify
at the fact-finding hearing, established that the child had
visited him at his place of incarceration on four prior
occasions and that, although he had not seen the child for
several months as of the date of the hearing, he had made
efforts to maintain written communication with the child by
sending letters and cards. Family Court found the distance to
and from the prison at which the father was incarcerated to
be not particularly burdensome, and noted that the father was
willing to assume responsibility for all transportation costs
and arrangements. In that regard, the father testified that
his sister was an available resource to transport the child
and the mother to the prison for visitation, as she had done
on prior occasions, and that he was working with an
organization to help defray the costs of such transportation.
Neither the mother nor the attorney for the child presented
testimonial or documentary evidence to counter the
father's representations. While Family Court recognized
that the father faced the possibility of deportation upon his
eventual release from prison,  it reasoned that this was
not a sufficient basis upon which to deny him any visitation
with the child at this time. Considering all of the
circumstances, and according the requisite deference to
Family Court's findings, we find a sound and substantial
basis for the court's determination to award the father
limited visitation with the child three times per year
(see Matter of Samuels v Samuels, 144 A.D.3d at
1416; Matter of Lapham v Senecal, 125 A.D.3d 1210,
1211 ; Matter of Baker v Blanchard, 74 A.D.3d
1427, 1428 ; Matter of Garraway v Laforet, 68
A.D.3d 1192, 1194 ; compare Matter of Coley v
Mattice, 136 A.D.3d 1231, 1232 ; Matter of
Duane FF. [Harley GG.], 135 A.D.3d at 1095; Matter
of Ruple v Harkenreader, 99 A.D.3d 1085, 1986-1087
Devine, Mulvey and Aarons, JJ., concur.
that the order is affirmed, without costs.