Culver v. Culver

Peters, J.P.

(dissenting). We respectfully dissent. The parties’ daughter was born in 2005. Before she was even conceived, petitioner (hereinafter the father) began molesting students in his elementary school. A teacher, he chose his own students to victimize.

When -his daughter was 14 months of age, the father was arrested and charged in a 49-count indictment with sexually molesting eight boys under the age of 11. Shortly thereafter, he signed a separation agreement which made no provision for custody or visitation. After pleading guilty to the entire indictment, he was sentenced, in January 2008, to an aggregate sentence of 12 years in prison. After sentencing, but before this Court affirmed his conviction (People v Culver, 69 AD3d 976 [2010]), he filed a petition in Family Court seeking visitation at the facility where he was incarcerated. At the time his petition was filed, he had not seen the child for over one year.

Despite the fact that this father’s reprehensible conduct toward children — who had been placed in his trust — had torn her family asunder, respondent (hereinafter the mother) fostered a positive relationship between her daughter and the child’s paternal relatives. She also permitted correspondence between the father and the child.

Prior to the fact-finding hearing concerning visitation, the child and her mother were evaluated by experts who rendered conflicting opinions at trial. Significantly, neither expert evaluated the father. While a visit to the institution of his incarceration for such purpose may have been challenging, it strikes us *1301as disingenuous for an expert to opine that visitation with a convicted sex offender in a maximum security prison setting serves the best interests of an infant without conducting even a perfunctory assessment of that offender.

The majority opines that “[w]hile the child has not seen her father since she was 18 months old, there is clearly an established relationship between the child and the father.” During the time this “relationship” was forming, the father was sexually abusing young boys in his classroom. A “relationship” may have existed, but one cannot conclude that it was a healthy parent-child relationship. Moreover, at the time of the fact-finding hearing, the father had not engaged in sex offender treatment. Strikingly, in testifying at the hearing, he refused to acknowledge his criminal conduct and declined any need for sex offender treatment, instead asserting that he had been “railroaded.”

It is against this backdrop that relevant law should be applied. To be sure, visitation with a noncustodial parent is presumed to be in a child’s best interests (see Matter of Chambers v Renaud, 72 AD3d 1433, 1434 [2010]). And, while “the incarceration of a noncustodial parent shall not, by itself, preclude visitation with his or her child, a denial of an application for visitation is proper where evidence demonstrates that visitation would not be in the child’s best interests]” (Matter of Conklin v Hernandez, 41 AD3d 908, 910 [2007] [internal quotation marks and citations omitted]; see Matter of Morelli v Tucker, 48 AD3d 919, 920 [2008], lv denied 10 NY3d 709 [2008]). Moreover, if Family Court has exercised its sound discretion in assessing best interests, its findings will not be disturbed unless lacking a sound and substantial basis in the record (see Matter of Cole v Comfort, 63 AD3d 1234, 1235 [2009], lv denied 13 NY3d 706 [2009]). Yet, we are unable to glean sound discretion from Family Court’s decision or substantial support for its findings as to the propriety of visitation. In fact, consideration of the relevant factors leads us to the inescapable conclusion that visitation under these circumstances would not serve the child’s best interests.

The father’s crimes are serious, were committed against young children who had been placed in his trust, and have resulted in a lengthy sentence. The record is bereft of any evidence that he attempted to receive treatment for his urges and conduct prior to his arrest or incarceration, or thereafter. Thus, as stated by the mother’s counsel at the fact-finding hearing, the father is a “convicted, unrepentant, untreated pederast.” He committed these serious acts prior to and during his “rela*1302tionship” with his child and has not seen her since she was 18 months old. While the child has been described as well adjusted, the full credit for this result must be granted to the mother, for we cannot conclude that a father who leaves the home he shares with his infant daughter in the morning to molest his students during the school day could properly have a healthy emotional relationship with this child.

Given this father’s lengthy prison sentence, the horrific nature of the underlying sex offenses, his refusal to acknowledge his conduct or his need for sex abuse counseling, the distance the child would have to travel to exercise visitation in a maximum security prison setting, and the fact that more than three years have now elapsed since he has seen the child, we find lacking any sound and substantial basis in this record for Family Court’s conclusion that future visitation would serve the child’s best interests (see Matter of Gutkaiss v Leahy, 285 AD2d 752, 753 [2001]; Matter of Rogowski v Rogowski, 251 AD2d 827, 827-828 [1998]; Matter of Hadsell v Hadsell, 249 AD2d 853, 854 [1998], lv denied 92 NY2d 809 [1998]; see also Matter of Jasmin E.R., 303 AD2d 1034, 1035 [2003]). That Family Court could further reward the father by requiring that the mother pay the cost of counseling to prepare her daughter for prison visits truly adds insult to injury. For these reasons, we would reverse Family Court’s order and permit weekly monitored letters to the child and monthly monitored telephone calls with all costs to be borne by the father.