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Incarcerated father denied visitation. In the Matter of Marcial v. Sullivan, 296 A.D.2d 551 (N.Y. App. Div. 2002)


In the Matter of Marcial v. Sullivan the Family Court, Kings County, was tasked with weighing the delicate balance between a father’s desire for visitation and the welfare of his two children. The case, decided in 2002, sheds light on the nuanced considerations that come into play when a parent seeks visitation while facing incarceration.

In New York, incarcerated parents retain the right to seek visitation with their children, underscoring the importance of maintaining family connections. However, the overarching principle guiding such cases is the paramount consideration of the child’s best interests. While imprisonment alone doesn’t preclude visitation, courts carefully evaluate individual circumstances. Factors such as the nature of the parent-child relationship, the child’s age, and any potential risks are weighed to ensure that visitation aligns with the child’s well-being. This nuanced approach acknowledges the significance of maintaining parental ties even in challenging situations but emphasizes that these rights are subject to the ultimate goal of safeguarding the child’s welfare.


The case of Matter of Marcial v. Sullivan centers on a father’s pursuit of visitation rights with his two children, bringing the matter before the Family Court under the jurisdiction of Judge Lopez-Torres. In the absence of a formal hearing, the court, on November 13, 2000, issued an order denying the father’s plea for visitation. Represented by Daniel Gartenstein, the father sought access to his children, while the late Kathy Kilocoski Sullivan (also known as Katherine M. Kilichowski), the children’s mother, was posthumously represented pro se.

Despite permitting the father to maintain correspondence with his children and acquire photographs, the court refrained from allowing visitation within the confines of the correctional facility where he was serving time. Custody of the children had been entrusted to their maternal grandmother since 1992, and at the time of the proceedings, they resided in Pennsylvania. A crucial element in the court’s decision was the father’s failure to establish a substantial relationship with his children prior to his incarceration. One child had never met him, while the other, who had last seen him at the age of two, had no recollection of their father. The Law Guardian, Carol Sherman, reported that both children expressed fears about visiting their father in prison. While recognizing that parental incarceration alone does not categorically deny visitation, the court based its decision on a broader assessment of circumstances, deeming visitation contrary to the children’s welfare. Notably, the court considered the expressed fears of the children in its determination, shedding light on the nuanced considerations involved in such delicate family matters.  The father appealed.

The issue appealed in Matter of Marcial v. Sullivan was the denial of the father’s application for visitation by the Family Court. The father contested this decision, seeking a review and potential reversal of the court’s order that denied him visitation rights with his two children.

Holding and Discussion
The court affirmed the order of the Family Court. The decision denied the father’s application for visitation, aligning with the determination that, considering all circumstances, it would be detrimental to the children’s welfare.

The court concurred with the Family Court’s decision, emphasizing that, in evaluating the father’s plea for visitation, the well-being of the children was the paramount consideration. The court took into account various circumstances, including:

  • the father’s incarceration
  • the children’s lack of a substantial pre-existing relationship with him
  • the children’s expressed fear of visiting their father in prison

Based on these factors, the court determined that granting visitation would be detrimental to the children’s welfare.The case highlights the delicate considerations involved in deciding visitation rights, especially when one parent is incarcerated. While acknowledging that incarceration alone does not mandate a denial of visitation, the court prioritized the children’s welfare. The lack of a substantial pre-incarceration relationship between the father and his children, coupled with their expressed fears, formed the basis for the court’s decision.

In the Matter of Marcial v. Sullivan serves as a poignant reminder of the intricate balance courts must strike in family law cases. The decision underscores that, in matters of visitation, the paramount concern is the well-being of the children. While parental rights are significant, they must be weighed against the potential harm to the children, emphasizing the court’s role as the guardian of their best interests.

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