IN RE: a Proceeding for Custody/Visitation Under Article 6 of the Family Court Act Father (2026)

PROCEDURAL POSTURE

The Petitioner in this case, Father (hereinafter 'the Father'), has petitioned this Court to award visitation between the subject child and him, and for the Respondent, Mother (hereinafter 'the Mother') to provide transportation of said child to visit with Father at Gouverneur Correctional Facility. The subject child is S.N.

The parties were never married. There is no underlying order of custody or visitation. An Order of Filiation by Default was issued by Support Magistrate James Gorman on January 31, 2017, and filed and entered on February 27, 2017 (hereinafter 'Order of Filiation). This Order of Filiation declares Father as the father of S.N.

On August 12, 2025, the Father filed a visitation petition with this Court in Onondaga County alleging that it is in S.N.'s best interest to have visitation with the Father during the period of the Father's incarceration and thereafter.

On September 24, 2025, the Father appeared by phone before The Honorable Diane E. Plumley. The matter was adjourned for service on the Mother. On November 6, 2025, the Court adjourned the proceeding as the Father was unable to appear because his phone call was cancelled by Gouverneur Correctional Facility. The matter was re-scheduled for a control date to confirm personal service of the Mother on November 20, 2025. On November 19, 2025, the Court received a defective Affidavit of Service but adjourned for the Father to amend. On February 5, 2026, Father's attorney attempted service on the Mother but served a suitable other with the petition only and not the summons. The Court adjourned one more time for Father's attorney to effectuate proper service. On February 17, 2026, the Mother appeared in court, confirmed receipt of the petition, and this court entered a general denial and gave default warnings. On that date, the Father was unable to appear virtually or telephonically from Gouverneur Correctional Facility. The Father's attorney appeared on his behalf. This Court assigned an Attorney for the Child (hereinafter 'AFC'). The AFC represented S.N. throughout these proceedings. On March 30, 2026, both parties appeared with counsel. This Court adjourned the matter and scheduled for trial. On May 13, 2026, Father, the AFC, and counsel appeared. The Mother did not appear. At that proceeding, the Mother's counsel alleged that Mother had a death in the family and requested an adjournment. This Court granted the adjournment request over the Father's objection and scheduled the matter for trial. On May 13, 2026, this Court sent written default warnings to the parties for the scheduled trial. On August 10, 2026, the trial commenced and concluded the same day. On August 27, 2026, this Court held a Lincoln Hearing with S.N.

This Court heard testimony from one witness: the Father. This Court had the unique opportunity to observe the witness and assess the "credibility, character, temperament, and sincerity of the parties" (Matter of Bacchi v Clancy, 101 AD3d 993 [2nd Dept 2012]). This Court did not receive any exhibits. Counsel delivered oral opening and closing arguments on the day of trial.

Now after due and careful deliberation and based upon a thorough review of all the evidence in the record, this Court makes the following determination.

SUMMARY OF THE EVIDENCE

The Father testified that despite the relief requested in the petition, he is not asking that the Mother provide transportation for S.N.'s visitation. The Father proposed that his sister, Sharnae N., and/or girlfriend, Sharinne J., transport S.N. over three hours round trip to Gouverneur Correctional Facility for visitation. The Father is unaware of the last time that Sharnae N. spoke with S.N. Sharinne J. has never spoken with nor met S.N. The Father is seeking in-person visitation with S.N. at least once per month. The child, S.N., is being cared for by the Mother, although there is no formal custody order.

FATHER'S CRIMINAL HISTORY

On direct examination the Father testified that he is currently incarcerated at Gouverneur Correctional Facility and has been since March 2022. The Father was convicted of Criminal Possession of a Weapon and Criminal Possession of a Controlled Substance and was sentenced to seven years in prison. The Father has approximately sixteen months left on his sentence. The Father was previously convicted of Criminal Contempt regarding the violation of an order of protection in favor of the Mother. The Father testified that he believes there is a current order of protection that prevents the Father from contacting the Mother or the Mother's husband.

CPS INVESTIGATION

The Father testified on cross-examination that he was the subject of an investigation by Child Protective Services (hereinafter 'CPS') regarding S.N. getting burned. The Father believes this occurred between 2015-2017. The Father was interviewed regarding this allegation by a CPS caseworker while he was incarcerated at Jamesville Correctional Facility for Criminal Contempt. The allegations in the CPS report were that the Father burned S.N.

COMMUNICATION ATTEMPTS

The Father testified that he and the Mother lived together with S.N., and the Father's two older sons, until S.N. was approximately two years old. The Father testified that he had meaningful, in-person contact with S.N., when she was between two and five years old, on more than 50 separate occasions. This contact was facilitated by the maternal grandmother. The Father testified that the last time he saw S.N. in-person was when his sister, Janae N., brought S.N. to the Father's niece's birthday party when S.N. was approximately five or six years old.

The Father testified that he is justified in his minimal efforts to have a relationship with S.N. because he has been forced out of her life by the Mother and is unable to speak with the Mother directly due to an active order of protection. The Father claims that the Mother has made it difficult for him to have a relationship with S.N., especially after the CPS investigation regarding S.N. getting burned. However, the Father did not file any petitions for custody or visitation prior to his incarceration in March 2022 because he claims that he did not know the procedure. The Father acknowledged that he knew where the courthouse was and could have walked in and asked how to file a petition but did not.

The Father testified that since his incarceration commenced in March 2022, he has attempted to get in contact with S.N. through his family, specifically his sister, Janae N., and girlfriend, Sharinne J. Janae attempted to initiate a three-way call while the Father was incarcerated but was unsuccessful because S.N.'s phone number changed. Since becoming incarcerated, the Father has not written to S.N. The Father testified that during the pendency of these proceedings, the Father had two phone calls with S.N. while he was incarcerated facilitated by the Father's sixteen-year-old son. The Father and S.N. spoke about school and how much the Father loved S.N. The Father testified that since his incarceration commenced in March 2022, he attempted three or four times to file a petition for visitation but was previously unsuccessful because he did not have any help.

The Father testified that he would wait to have in-person visitation with S.N. until he was released from prison if it was going to cause S.N. harm or anxiety. The Father testified that the only way for S.N. and himself to have video visits while he is incarcerated would be if S.N. was transported to a facility that was authorized to conduct video visits. The Father believes that therapeutic visitation between S.N. and himself would be a good way to re-introduce himself and build their relationship. However, the Father does not believe that S.N. visiting him would cause her harm because the two phone calls he had with S.N. while these proceedings were pending went well. The Father testified that his motivations for wanting in-person visitation now is because he intends to petition for weekend visitation when he is released from prison and wants S.N. to be comfortable with him before that happens.

LAW

The Court recognizes that "It is well settled that [communication and] visitation with a noncustodial parent is generally presumed to be in a child's best interests" Bray v. Bray 78 AD3d 1564, 1565 (4th Dept. 2010) quoting Matter of Mark C. v. Patricia B. 41 AD3d 1317, 1318. "The fact that a parent is incarcerated will not, by itself, render visitation inappropriate" Matter of Buffin v. Mosley 263 AD2d 962 (4th Dept. 1999) quoting Matter of Lonobile v. Betkowski 261 AD2d 829, quoting Matter of Davis v. Davis 232 AD2d 773. On the other hand, parenting time "need not always include contact visitation at the prison" Rulinsky v. West 107 AD3d 1507, 1509 (4th Dept. 2013) quoting Ruple v. Harkenreader 99 AD3d 1085, 1087."Although parenting time with a noncustodial parent is presumed to be in a child's best interests, that presumption may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child's welfare" (Matter of Gabrielle Q. v. James R., 233 AD3d 1407, 1408, 224 N.Y.S.3d 704 [3d Dept. 2024] [internal quotation marks and citations omitted]; accord Matter of Joenathan E. v. Jennifer F., 242 AD3d 1339, 1340, 243 N.Y.S.3d 564 [3d Dept. 2025]). "In assessing what would be in the best interests of the child, the factors to be considered include the age of the child, the lack or existence of a meaningful relationship between the parent and the child, the distance and travel time entailed, and the length of the parent's prison sentence" (Matter of Tamara T. v. Brandon U., 180 AD3d 1286, 1287, 118 N.Y.S.3d 321 [3d Dept. 2020] [internal quotation marks and citations omitted]; accord Matter of Joenathan E. v. Jennifer F., 242 AD3d at 1340, 243 N.Y.S.3d 564; see Matter of Robert SS. v. Ashley TT., 143 AD3d 1193, 1194, 40 N.Y.S.3d 245 [3d Dept. 2016]). Gary JJ. v Barbara KK., 244 AD3d 1620, 1621-22 [3d Dept 2025].

"Family Court is in most advantageous position to evaluate testimony, character and sincerity of parties, and its findings in custody dispute are entitled to the greatest respect" (Rokitka v Bauer, 219 AD2d 834 [4th Dept 1995]). "While the express wishes of children are not controlling, they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful." Veronica S. V. Philip R.S. 70 AD3d 1459 (4th Dept. 2010) quoting Koppenhoefer v. Koppenhoefer , 159 AD2d 113, 117.

Ultimately, propriety of visitation between children an incarcerated parent is left to the sound discretion of Family Court, guided by the best interests of the children, and its decision will not be disturbed where it is supported by a sound and substantial basis in the record. Benjamin OO. v Latasha OO., 170 AD3d 1394 [3d Dept 2019]

ANALYSIS

1. Age of S.N.

S.N. is almost twelve years old and very shy. The AFC expressed to this Court, and it was alluded to throughout the testimony, that S.N. has anxiety about visiting the Father in prison. The atmosphere and setting of in-person visitation may be traumatic to S.N. and her view of the Father.

This Court has considered the wishes of S.N. (as revealed during the Lincoln hearing and will not be shared). Without disclosing the specific information shared by S.N. during the Lincoln hearing, this Court finds that S.N.'s relationship with the Father is remote and tenuous at best. From the Father's own testimony, S.N. has not seen the Father in-person in approximately seven years. The testimony revealed that S.N. has serious anxiety at the prospect of having direct contact with the Father while he is incarcerated. To his credit, the Father seems to have grasped the reality of this situation and conceded in his testimony that S.N. should not be forced to interact with him in-person whilst incarcerated if it would cause her anxiety or harm. This Court gives some weight to this factor due to S.N.'s age.

2. Lack of Meaningful Relationship

The Father alleges in his pleading that it is in S.N.'s best interest to have visitation with him and that he desires to have a connection with S.N. Through the Father's own testimony, since the parties stopped living together when S.N. turned two years old, the Father has had sporadic contact with S.N. (approximately 50 times over a three-year span). After the parties stopped living together, the bulk of the Father's in-person contact with S.N. was when S.N. was between two and five years old. The last time the Father had in-person contact with S.N. was when she was approximately five or six years old.

The Father's assertion that the Mother has created a barrier in his ability to have a relationship with S.N. falls short with this Court. The Father had the ability to file a custody of visitation petition prior to his incarceration in March 2022 but made no attempts to do so despite knowing where the courthouse was. Even after the Father's incarceration, it took three years for him to successfully file a visitation petition. The Father alleges that he made three or four attempts to file for visitation once his incarceration commenced in March 2022. However, the Court's records do not show any custody or visitation filings for S.N., other than this pending matter, in New York State.

Furthermore, the Father claims that an active order of protection between the parties hindered his ability to communicate with S.N. This Court has searched and relied upon the statewide registry of orders of protection which shows the last order of protection between the parties expired on December 5, 2021. The order of protection that expired on December 5, 2021, indicates that the defendant, Father, was advised in Court of the issuance and contents of the order and was personally served with the order in Court. This means that the Father knew or should have known that he had the ability to communicate with the Mother directly for almost five years. This Court finds the Father's testimony to be not credible.

Even if this Court gives the Father the benefit of the doubt and takes his testimony to be true: that the Father was ignorant to the procedures of family court, that S.N.'s phone number had changed, and that he believed he could not contact the Mother directly, it does not explain why the Father made no attempts to write a letter to S.N. The Father's lack of effort does not go unnoticed with this Court.

This Court finds that the Father had only seen S.N. in-person when she was very young and has been in prison for most of S.N.'s life. The in-person contact that Father had with S.N. was sporadic and then ceased once the Father was arrested. More importantly, the Father placed blame on the Mother for the minimal contact despite having the ability to petition the court for visitation prior to the current matter. This Court gives substantial weight to this factor.

3. Distance and Travel Time

The Father testified that it is over three hours by car round-trip from Syracuse to Gouverneur Correctional Facility. There are logistical concerns with in-person visits based upon the distance between the Father's correctional facility and S.N.'s residence. The Father's suggestion that his family, specifically his sister and girlfriend, neither of whom have a close relationship with S.N., would be willing to provide transportation was vague and otherwise unsupported. Neither of these people testified to their willingness to assist with transportation. This Court gives substantial weight to this factor.

4. Length of Prison Sentence

The Father testified that he has approximately sixteen months left on his seven-year sentence. Once released, his intention is to live on his own in Onondaga County, near S.N. By then, S.N. will be thirteen years old. There is plenty of time left in S.N.'s childhood for her to have meaningful, in-person contact with the Father after he is released from prison. Other means of contact, such as frequent phone calls and letters, could provide S.N. and the Father meaningful communication and ways to continue and strengthen their relationship for the remainder of his sentence, without subjecting S.N. to unnecessary distress. This Court gives some weight to this factor.

Upon consideration of all the evidence (and the information shared by S.N. during the Lincoln hearing), the Court concludes that it would be detrimental to S.N. to award the Father in-person parenting time.

Upon consideration of a totality of the circumstances, this Court finds that it is in S.N.'s best interest to NOT award in-person visitation to the Father but rather phone call communication only while the Father is incarcerated. The Father may petition the Court to modify this Order once released from incarceration.

The Court has searched and relied upon the statewide registry of orders of protection, the sex offender registry and the Family Court's warrant and child protective records and has notified the attorneys and the AFC of the results by virtue of this decision. No results were found that would affect the issuance of this Order.

NOW, therefore, based upon the foregoing, it is hereby

ORDERED, that Father's petition for visitation (V-04879-25) is GRANTED in-part and DENIED in-part it is further;

ORDERED, that the Father shall have phone calls with S.N. once per month, to be initiated by the Father, at a time and date agreed upon between the parties, that will not unreasonably interfere with S.N.'s school or extracurricular activities. The Mother shall not impede or otherwise interfere with S.N.'s ability to receive these phone calls; and it is further

ORDERED, that the Father shall be able to write letters to S.N. directly; and it is further

ORDERED, that the Father may petition the court to modify this Order once he is released from incarceration. The Father's release shall constitute a substantial change in circumstances; and it is further

ORDERED, that service of this order by email upon the attorneys of record shall be deemed sufficient service.

Dated: September 18, 2026

DIANE E. PLUMLEY

Family Court Judge

*PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST.

Diane E. Plumley, J.