SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

830.1 

CAF 12-00063 

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ. 

 

IN THE MATTER OF SHAWN G. GRANGER, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

DANIELLE D. MISERCOLA, RESPONDENT-APPELLANT. 

 

DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR

RESPONDENT-APPELLANT. 

CHARLES J. GREENBERG, BUFFALO, FOR PETITIONER-RESPONDENT. 

MELISSA L. KOFFS, ATTORNEY FOR THE CHILD, CHAUMONT, FOR TRENTIN T.M. 

 

Appeal from an order of the Family Court, Jefferson County (Peter

A. Schwerzmann, A.J.), entered December 7, 2011 in a proceeding

pursuant to Family Court Act article 6. The order granted the

petition for visitation. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner father commenced this Family Court Act

article 6 proceeding seeking visitation with the parties’ child at the

correctional facility where he was then incarcerated. Family Court

granted the father’s petition and, inter alia, awarded him “one four

hour visit during the months of January and April 2012 and then every

other month commencing in July 2012.” We affirm. 

“ ‘It 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 AD2d 935; see Matter

of Cierra L.B. v Richard L.R., 43 AD3d 1416, 1416-1417). “Unless

there is a compelling reason or substantial evidence that visitation

with an incarcerated parent is detrimental to a child’s welfare, such

visitation should not be denied” (Thomas, 277 AD2d 935; see Matter of

Rhynes v Rhynes, 242 AD2d 943, 943). “[V]isitation 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 AD3d 1273, 1273 [internal

quotation marks omitted]). 

Contrary to the contentions of respondent mother and the Attorney
-2- 830.1 

CAF 12-00063 

for the Child, we conclude that there is a sound and substantial basis

in the record to support the court’s determination to grant the father

visitation with the child in accordance with the schedule set forth in

the order (see Matter of Culver v Culver, 82 AD3d 1296, 1298-1299,

appeal dismissed 16 NY3d 884, lv denied 17 NY3d 710; Matter of Baker v

Blanchard, 74 AD3d 1427, 1428-1429; Rhynes, 242 AD2d at 943-944; cf.

Matter of Albanese v Albanese, 44 AD3d 1117, 1120; see generally

Matter of Nicole J.R. v Jason M.R., 81 AD3d 1450, 1451, lv denied 17

NY3d 701). In reaching that conclusion, we defer to the court’s

opportunity to assess firsthand the character and credibility of the

parties (see Helles, 87 AD3d at 1273-1274; Nicole J.R., 81 AD3d at

1451).

The record establishes that the father was convicted of various

felony drug charges, for which he was sentenced to an aggregate term

of incarceration of eight years. Prior to his incarceration, the

father was present for the birth of the child, and he testified that,

during the six or seven months in which he was not incarcerated

following the child’s birth, he visited with the child on

approximately 12 occasions. Although the father has not seen the

child since the father was incarcerated, at which time the child was

only a year old, the father has repeatedly requested that the mother

transport the child to the correctional facility for visitation, and

he has attempted to maintain a relationship with the child over the

telephone and by sending letters, cards, and gifts. We thus conclude

that the father made, and continues to make, efforts to establish a

relationship with the child, and it cannot be said that he is “a

stranger to the child” (Culver, 82 AD3d at 1299 [internal quotation

marks omitted]). 

We recognize that the three-year-old child will be required to

travel a distance of over two hours in both directions to effectuate

visitation. Nevertheless, the fact “[t]hat the child is young and

will likely need to travel a considerable distance between [his]

residence and the father’s prison does not necessarily preclude

visitation” (id.). We note that the father has arranged for his

mother and sisters to transport the child for visitation. Although it

is apparent from the record that the child is not familiar with those

members of the father’s family, making them “virtual strangers”

(Matter of Goldsmith v Goldsmith, 68 AD3d 1209, 1210), the court

purposely scheduled limited visits during the initial six-month period

to afford the parties the opportunity to familiarize the child with

the father’s mother and sisters, and the court thus fashioned a

visitation plan that was “ ‘viable and workable’ ” (Culver, 82 AD3d at

1299). The record further establishes that the father’s earliest

release date is not until September 2016, and we agree with the court

that such a long period of separation could be detrimental to the

established relationship between the father and the child. 

Finally, although it appears that the father was transferred to

another correctional facility after the court issued its

determination, which the mother alleges will lengthen the distance

that the child must travel to effectuate visitation, we note that “any

change in circumstance is more appropriately the subject of a
-3- 830.1 

CAF 12-00063 

modification petition” (Matter of Moore v Schill, 44 AD3d 1123, 1123).

Entered: June 29, 2012 Frances E. Cafarell

Clerk of the Court