Visitation with Imprisoned Father Terminated

In affirming Family Court’s termination of visitation with the imprisoned father, the Fourth Department explained the operative principles:

“An order of visitation cannot be modified unless there has been a sufficient change in circumstances since the entry of the prior order [that], if not addressed, would have an adverse effect on the child[’s] best interests” … .“[W]hile not dispositive, the express wishes of older and more mature children can support the finding of a change in circumstances”… .. Here, the evidence establishes that, since the entry of the prior order and as the child has matured, she has developed a strong desire not to visit the father. Additionally, Family Court credited the mother’s testimony that the father was using visitation time to attempt to reconcile with the mother rather than to interact with their child. Thus, we conclude that there has been a sufficient change of circumstances to warrant “ ‘an inquiry into whether the best interests of the [child] warranted a change in custody’… .  * * * We recognize that “[v]isitation with a noncustodial parent is presumed to be in a child’s best interests even when the parent is incarcerated”….  In order to rebut the presumption, the party opposing visitation must establish by a preponderance of the evidence “that under all the circumstances visitation [with the incarcerated parent] would be harmful to the child’s welfare” … .  Matter of Rulinsky v West, 233, 4th Dept, 6-14-13