New York Family Law Blog
No. 100288
June 21, 2017
Facts:
The parties lived together in a small apartment in the Bronx in the fall of 2008. They ended up having a child together, and stayed together for 3 months. After this time, the Petitioner moved in with family. He tried to maintain contact with his infant son for a time, but his efforts eventually trailed off.
The Petitioner has filed 2 previous petitions, both of which were dismissed with prejudice. Although these legal actions did prompt the Respondent to initially allow more visits. This continued until the Petitioner was incarcerated, which stemmed from the murder of another 3-year-old child. An ex-girlfriend was the mother.
The Petitioner hasn’t see the child since, despite the availability of visitation, the Respondent confirms. The Respondent reports that the Petitioner hasn’t tried to visit the child. The Petitioner has also learned that the child has been diagnosed with autism.
The attorney for the child says that the murder by the Petitioner was the 3-year-old child of a prior girlfriend. The child was beaten by the Petitioner because she wouldn’t eat her food.
The Respondent contends that they were in a 3-year relationship, and she opposes any prison visits. Because of the child’s autism, he is unable to handle the new sights and sounds of prison.
The Petitioner relies on the presumption in favor of the father’s visitation rights. He states that allowances could be made to address the child’s needs. On the other hand, the Respondent claims that visitation would not be in the child’s best interests. The unfamiliar people, places, and lack of understanding of the issue could be very problematic. The Petitioner has done nothing to warrant visitation and has made no attempt to see the child until now.
On the other hand, denying a biological parent visitation is a serious matter. This should only be done for compelling reasons (Rhynes v Rhynes 242 AD2d 943, 944 [4th Dept. 1997], Rogowski v Rogowski 251 AD 827 [3d Department 1998].
The court said that it must determine what is in the best interest for the child (Eschbach v Escbach 56 NY 2d 167, 171 [1982], citing Domestic Relations Law 70. The courts contend that visitation should be denied where it is shown that under all circumstances visitation would be harmful to the well-being of the child. This burden of proof must be met by a preponderance of the evidence.
There is a rebuttable presumption that the Petitioner’s incarceration doesn’t make the visitation appropriate and may not be in the child’s best interests (Ellett v Ellett 265 AD2d 747 [3d Department 1999], Teixeria v. Teixeria 205 AD2d 545 [2d Department 1994], Rhynes v Rhynes 242 AD2d 943.
To decide if the presumption should be rebutted when deciding this case must be evaluated with all of the facts (Granger 21 NY3d at 91). This burden must be met by a preponderance of the evidence.
In the previously cited cases, the main difference was the length of travel. In addition to the length of travel (Granger, 21 NY3d 91), the Petitioner was not familiar with the visitation area, or familiar with the process. There is also no guaranteed visitation area, none of the prison guards know the child and are not trained at dealing with any outbursts. The Petitioner doesn’t know if the child will have to undergo a strip search. The child may have difficulty expressing his needs.
Also the brutal facts regarding the Petitioners past case can’t be ignored. He was convicted of blunt force trauma after losing his temper with a child.
Accordingly, it would be inappropriate to permit the Petitioner to have in person visitation rights. The Petitioner may communicate with the child through written correspondence (Bongor v Murray 213 AD2d 695 [3d Dept. 200].
If you have a child custody matter, it is important to seek legal guidance to ensure that your rights, and the rights of your child are protected. Speak to Stephen Bilkis and Associates for guidance and a free consultation. They have office locations in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County and Westchester County. Call them today for a free consultation at 1-800-NYNYLAW.