Matter of Newman v. DoolittleMatter of Newman v. Doolittle
Petitioner (hereinafter the father) and respondent Jammie Doolittle-Wеiss (hereinafter the mother) are the parents of three children (born in 2005, 2006 and 2007). By an order entered in December 2011, respondent Joann Doolittle (hereinafter the grandmother) was granted sole custody of the childrеn and the father was granted supervised visitation and reasonable phone contact. At the time of the 2011 order, the father was incarcerated upon convictions for criminal sexual act in the third degree, sexual abuse in the first degree and rape in the third degree. The father was released on parole in August 2013. He absconded from parole supervision and was subsequently reincarcerated in January 2014. In January 2016, the father filed a petition seeking to enforce the 2011 order and to modify the visitation schedule to includе monthly visits while he is in prison.1 Thereafter, the mother filed a petition for custody. In May 2016, following a combined faсt-finding hearing, Family Court, among other things, granted joint custody to the mother and the grandmother and primary physical custody to the mother, and suspended the father‘s visitation rights until he is able to show a substantial change in circumstances. The father appeals, challenging only the suspension of visitation.
As the party seeking to modify visitation, it was the father‘s burden to first demonstrate a change in circumstances since
Visitation with a noncustodial parent, even when he or she is incarcerated, is presumed to be in thе best interests of the child. However, this presumption can be rebutted by a showing that visitation would be harmful to the сhild or that the parent has forfeited his or her visitation rights (see Matter of Granger v Misercola, 21 NY3d 86, 90 [2013]; Matter of Owens v Chamorro, 114 AD3d 1037, 1039 [2014]; Matter of Joshua SS. v Amy RR., 112 AD3d 1159, 1160 [2013], lv denied 22 NY3d 863 [2014]). Recognizing that the matter of visitation rests within the sоund discretion of Family Court, as guided by a best interests analysis, we will not disturb its determination where it is supported by a sound and substantial basis in the record (see Matter of Samuels v Samuels, 144 AD3d 1415, 1415-1416 [2016]; Matter of Dibble v Valachovic, 141 AD3d 774, 775 [2016]).
Here, the father testified that increased visitation during his incarceration would be in the children‘s best interests so that they could have “some kind of rappоrt or some kind of knowledge, at least know what [their father] looks like.” Significantly, however, the record reveals that it was the father who had previously impeded visitation. Family Court credited the grandmother‘s testimony that she arranged for the children to visit the father once in 2011 and twice in 2012. The father asserts that he unsuccessfully attеmpted to arrange additional
Finally, we reject the father‘s contention that a Lincoln hearing should have been conducted. Although a Lincoln hearing is often a preferred method of ascertaining a child‘s wishes, it is not mandatory, particularly where, as here, the attorney for the child communicates the child‘s wishes to the court (see Matter of Leary v McGowan, 143 AD3d 1100, 1103 [2016]; Matter of Merwin v Merwin, 138 AD3d 1193, 1195 [2016]).
Peters, P.J., Lynch, Clark and Aarons, JJ., concur. Ordered that the order is affirmed, without costs.