IN RE: SHONDELL R. BUTLER (2010)

MEMORANDUM AND ORDER

KELLY M. CORBETT, ATTORNEY FOR THE CHILD, FAYETTEVILLE, FOR DYLON E.

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

Memorandum:  Petitioner father appeals from an order denying his petition seeking visitation with the parties' 10-year-old son.   The father was sentenced in 2002 to an aggregate prison term of 272/323 years to life based upon his conviction of arson in the first degree and two counts of intimidating a witness in the third degree and his unrelated conviction of arson in the second degree.   Although we agree with the father that Family Court failed to apply the proper burden of proof in denying his petition (see Matter of Lonobile v. Betkowski, 261 A.D.2d 829), we nevertheless conclude that the record is sufficient to enable us to determine that visitation would not be in the best interests of the child (see Matter of Moses v. Rachal S., 273 A.D.2d 928;  Matter of Rogowski v. Rogowski, 251 A.D.2d 827).

The record demonstrates that the father failed to establish a meaningful relationship with the child (see Matter of Bougor v. Murray, 283 A.D.2d 695).   The father has been incarcerated since the child was two years old, and his last visit with the child took place when the child was three or four years old.   The father subsequently waited at least five years to file a petition for visitation, when the child was nine years old (see id. at 696).   The child has no memory of the father, and he indicated that he would not recognize his father if they were in the same room (see Matter of Vann v. Vann, 205 A.D.2d 897, lv denied 84 N.Y.2d 805).   In addition, given his lengthy prison sentence, the father “will remain in prison until long after the child[ ] reach [es] the age of majority” (id. at 898;  see Matter of David S. v. Nicole U., 31 AD3d 1206, 1207).   The record further establishes that the child suffers from severe car sickness, and visiting the father in prison would require the child to travel 21/212 to 3 hours each way with his paternal relatives, with whom he has no relationship (see Matter of Ellett v. Ellett, 265 A.D.2d 747;  Rogowski, 251 A.D.2d 827;  Matter of Davis v. Davis, 232 A.D.2d 773).

Patricia L. Morgan

Clerk of the Court