Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
IN RE: CHRIS SAWYER FEWELL, PETITIONER–APPELLANT, v. STACEY A. RATZEL, RESPONDENT–RESPONDENT.
MEMORANDUM AND ORDER
LYLE T. HAJDU, ATTORNEY FOR THE CHILD, LAKEWOOD.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to article 6 of the Family Court Act, petitioner father appeals from an order that denied his petition to modify a prior consent order of custody and visitation with respect to the parties' eight-year-old son. The father was sentenced in 2006 to a determinate term of imprisonment of 20 years based upon his conviction of rape in the first degree (Penal Law § 130.35) and criminal sexual act in the first degree (§ 130.50). Although Family Court concluded that the father had demonstrated a change in circumstances, it nevertheless determined based on the evidence presented at the hearing, including the uncontroverted testimony of the child's psychologist, that it was not in the best interests of the child to have visitation with the father at the correctional facility. We affirm.
It is well settled that “[v]isitation with a noncustodial parent is presumed to be in a child's best interests even when the parent is incarcerated” (Matter of Chambers v. Renaud, 72 AD3d 1433, 1434), but the presumption may be rebutted when it is shown, “by a preponderance of the evidence, that visitation would be harmful to the child” (Matter of Granger v. Misercola, 21 NY3d 86, 92). The court should consider the “totality of the circumstances” in determining whether visitation would be harmful to the child (Matter of Culver v. Culver, 82 AD3d 1296, 1297, appeal dismissed 16 NY3d 884, lv denied 17 NY3d 710). Here, the record demonstrates that the father “failed to establish a meaningful relationship with the child” (Matter of Butler v. Ewers, 78 AD3d 1667, 1667). The father had been incarcerated since the child was in utero, he had never met the child, and the child indicated that he did not want to visit the father. Furthermore, the child's psychologist testified that visitation would be detrimental to the child and that the father was “a total stranger” to the child (see Matter of Lonobile v. Betkowski, 295 A.D.2d 994, 994–995). We conclude that there is “a sound and substantial basis in the record” to support the court's determination (Matter of Nicole J.R. v. Jason M.R., 81 AD3d 1450, 1451, lv denied 17 NY3d 701).
Frances E. Cafarell
Clerk of the Court
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: CAF 13–01403
Decided: October 03, 2014
Court: Supreme Court, Appellate Division, Fourth Department, New York.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)