Before the Court is a single petition filed by Kevin D., (hereinafter referred to as "Father") on July 23, 2015 seeking to establish rights of access with the parties' child, J. (10) (hereinafter referred to as "J.") against Terri C., (hereinafter referred to as "Mother"). The petition sets forth allegations as to why Father believes he should be awarded access with J. as follows: "I love him and I want him to know, that I am hear for him. He should have the chance to know his father. Not only me but his grandmother, my mother! So he can know his father side of the family. An know that he's loved by all, and not by some. Also so he can learn from my mistakes and be better!" [SIC]

Testimony was heard on April 14, 2016. The only witness to testify was Father. At the conclusion of Father's case, Mother's counsel moved for dismissal of his petition. The Attorney for the Child joined in the motion, and Father's counsel opposed. The court declined to issue a ruling on the record, in favor of thoroughly deliberating and issuing this written decision.

This Court has had the unique opportunity to evaluate and observe the demeanor, temperament and sincerity of the witness and weigh his credibility. This Court has further [*2]considered the Petition filed by Father, together with the applicable statutory and case law and now makes the following material findings of fact and conclusions of law.

Father is 27 years old and has been continuously incarcerated since approximately December 31, 2007, when J. was about two and a half (2 ½ ) years old. He is currently serving an eighteen (18) year sentence at Attica Correctional Facility for a manslaughter conviction and has an earliest scheduled release date scheduled for May 29, 2023. J. will be just shy of his 18th birthday at that time.

Father testified that he was incarcerated prior to J.'s birth and released in or around October 17, 2006, when J. would have been about four (4) months old.Father testified that Mother brought J. to his home in or around November, 2006 so he could meet his child. Although he believed J. was his son, he testified that he did not see him again until sometime in 2007, when Mother was in a car accident. Father became incarcerated again in December, 2007, and remained so ever since.

In the fourteen (14) months that passed between October, 2006 and December, 2007 when Father was not incarcerated, he made no formal efforts to establish paternity. He testified that he asked Mother to "take a test", but they never did. He never sought court intervention to establish paternity. In fact, he testified that it was Mother who first wrote to him and sent him pictures, in an attempt to establish a relationship. Father testified that he did respond to her but his correspondence was returned. Father did not produce any of the returned documents at trial.

Paternity was finally established when J. was about four and half (4 ½ ) years old, when the Erie County Department of Social Services filed on behalf of Mother against Father. According to Father's own testimony, other than consenting to the entry of an order of filiation, Father has done absolutely nothing to establish or assert his parental rights, until the filing of the instant petition. Father testified that it took him nearly five (5) years after the entry of the Order of Filiation to determine Mother's whereabouts and file the instant petition.

He testified that he would like to send J. cards and letters, but he never has; claiming that he did not know Mother's address. Certainly, Father has known Mother's address at least since July, 2015. Yet, he has not sent one card or letter to him.

Father testified that he is seeking access with J. now because, tragically he too never had his own father in his life. Father would like to have J. visit with him in Attica Correctional Facility and proposes that his wife, a total stranger to J., could drive him. He acknowledged that J. and his wife have never met, so she would first have to make an effort to get to know him. Mrs. Drake has made no efforts to get to know J. as of yet.

It is well settled that visitation is a joint right of the noncustodial parent and the child. Weiss v. Weiss, 52 NY2d 170 (1981). A rebuttable presumption that a noncustodial parent will be granted visitation is an appropriate starting point in any initial determination regarding visitation. This presumption applies even when the parent seeking visitation is incarcerated. Granger v. Misercola, 21 NY3d 86 (2013).

In deciding whether the presumption is rebutted, the possibility that a visit to an incarcerated parent might be harmful to the child must be considered, together with other relevant facts. Visitation should be denied where it is demonstrated that under all the circumstances visitation would be harmful to the child's welfare or that the right to visitation has been forfeited. Granger v. Misercola, 21 NY3d 86 (2013).

Here, Father openly admits that he has done nothing for the last ten (10) years to establish a relationship with his son, even though he was well aware of his existence since J. was four (4) months old. Father has done nothing, save for filing the instant petition, in furtherance of establishing a relationship. He is a total stranger to his child, similar to the facts set forth in Fewell v. Ratzel, 121 AD3d 1542 (4th Dept. 2014).

J.'s attorney advocated vigorously for dismissal of the instant petition, and denial of any access. In the totality of circumstances, it is clear that in person and telephonic visitation would not be in J.'s best interests at the present time. Here, Father has in fact forfeited his rights of access, by his own indifference towards his son in failing to ever establish a meaningful relationship with him.

Father has never been denied the opportunity to demonstrate his commitment to J. by writing to him and sharing his thoughts and feelings with his son. He simply has chosen never to do so. Heartbreakingly, he alone shoulders the responsibility for being denied access in this matter at the present time. This the unfortunate consequence of the many poor choices Father has made.

NOW, THEREFORE, the Court having searched the statewide registry of orders of protection, the sex offender registry and the Family Court's child protective records, and having notified the attorneys for the parties and for the child of the results of these searches; And the Court having considered and relied upon the results of these searches in making this decision it is hereby:

ORDERED that Father's Petition for Visitation, (Docket No. V-11173-15) is hereby denied in its entirety. This constitutes the Decision and Order of the Court. Submission of an Order by the Parties is not necessary.