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Despite Child’s Wishes, Non-Custodial Father Granted Visitation- Matter of Byron M. v Sasha A., 2020 NY Slip Op 02243 (N.Y. App. Div. 2020)


In this case the Appellate Division examined whether the family court considered the 14-year-old child’s wishes when granting the father visitation.

In making decisions about custody and visitation, the Family Court’s primary concern is to do what is in the best interests of the child. The determination of what is in the best interests of the child requires an examination of a number of factors. One factor is a rebuttable presumption that it is in the child’s best interest to have a relationship with both parents.  In other words, unless there is convincing evidence that it would not be in the best interests of the child to have visitation with the noncustodial parent, the court will allow it.  For example, if there was evidence that visitation would result in the child suffering serious emotional harm or physical harm, then the court would not order visitation.

If the child is old enough, the court will also consider the wishes of the child. In this case, the child, a 14-year old girl, was interviewed in camera.  It appears that the child did not want to spend time with her father, not because she was concerned that he would harm her, but because she did not have a relationship with him.  He was basically a stranger to her and she had no emotional bond with him.

The Family Court decided to grant visitation to the father.  Unhappy with the decision, the child appealed.  The child argued that although she was interviewed, in making its decision to grant her father visitation, the Family Court did not take her wishes into consideration.

The Appellate Division disagreed with the child’s position. It noted that there is a rebuttable presumption that visitation by a noncustodial parent is indeed in the child’s best interest.  A Family  Court will only deny visitation under extraordinary circumstances.  In this case the child’s attorney did not present evidence that the father would place the child in any physical danger or cause the child serious emotional strain. There were no extraordinary circumstances that would justify a determination that the father had forfeited his right to visitation.

The Appellate Division addressed the child’s contention that the Family Court did not take the child’s wishes into consideration after interviewing her.  The court noted that the Family Court did listen to the child and did consider her position.  However, the wishes of the child are not dispositive and are not the only factor that the court will consider. Just because the court did not follow by the child’s wishes does not mean that it did not listen to her and take her wishes into consideration.  The court determined that absent evidence that granting visitation would cause the child harm, the father had the right to visitation and that it was in the best interest of the child to grant it.

This case exemplifies that in making custody decisions and visitation decisions, the court recognizes that both parents have the right to have a relationship with the child and that absence strong evidence to the contrary, the court will facilitate that.  Even when a parent has demonstrated the potential to harm the child physically or emotionally, the court may order supervised visitation in order for the child to maintain a relationship with the parent.  The goal would be for the parent to eventually have unsupervised visitation after showing that he or she has successfully taken steps to have a healthy relationship with the child.

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