Simpson v. Finnigan

Mar 21, 1994
Versions:202 A.D.2d 592
609 N.Y.S.2d 265
1994 N.Y. App. Div. LEXIS 2612

—In a proceeding for visitation pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Orange County (Bivona, J.), entered December 10, 1991, which, inter alia, directed (1) that he have no visitation with his child until the child reaches the age of majority, and (2) that before any visitation could occur after the child reaches the age of majority, "the child must have a therapist state unequivocally that it is not detrimental for the child to visit with the father at * * * whatever facility he may be incarcerated at”.

*593Ordered that the order is modified, on the law, by deleting the provision thereof which requires that before any visitation could occur after the child reaches the age of majority, "the child must have a therapist state unequivocally that it is not detrimental for the child to visit with the father at * * * whatever facility he may be incarcerated at”; as so modified, the order is affirmed, without costs or disbursements.

We agree with the appellant that the court erred by directing that the child have a therapist state that visitation with the appellant would not be detrimental to the child before any visitation could occur after the child reached the age of majority. Once a child is over 18 years old, the age of majority, the child is no longer subject to an order directing visitation (see, Family Ct Act §§ 119, 651; Matter of Eric L. v Dorothy L., 130 AD2d 660).

However, we find that the determination of the Family Court that visitation would not be in the child’s best interests is supported by the evidence. Although "[i]t cannot be said that the fact of a parent’s incarceration, standing alone, makes visitation of that parent’s child inappropriate” (Matter of Wise v Del Toro, 122 AD2d 714, 715; Verdino v Verdino, 139 Misc 2d 454), the child’s therapist testified that visitation by the child with his incarcerated father would be detrimental to the child’s mental health. The therapist stated that the child had been greatly traumatized by the father’s kidnapping of his mother at gunpoint, the incident for which he was incarcerated, during which time the father left the 12-year-old boy with a 95-year-old aunt in a motel room for three days. Thompson, J. P., Santucci, Krausman and Florio, JJ., concur.