In Y.Y.W. v. Z.G., the mother filed a petition seeking to modify two prior final orders, which denied her custody of her two sons and also prohibited visitation. The orders gave the father full legal and physical custody of the subject children.
In 2016, Hon. Ilana Gruebel found clear and convincing evidence that the mother had severely abused, abused and neglected the older son and consequently derivatively severely abused, abused and neglected the younger son, with whom she was pregnant at the time. The older son was brought to the hospital and was found to have suffered severe injuries from abuse. There were 49 bruises on his body and puncture wounds on his face. As a result of the abuse, he suffered permanent injuries including inability to breathe on his own, inability to eat on his own, complete immobility, and loss of sight.
The mother was he primary caregiver of the older son who was two years old at the time that he sustained catastrophic and permanent injuries. The father was working out of own and could return home to the mother and their son 2-3 times a month.
The mother was convicted of assault in the first and second degrees and reckless assault of a child. She was sentenced to a maximum of 20 years. The injured son has since either been hospitalized or institutionalized. The younger son was born in the Rikers Island Correctional Center while the mother was incarcerated and released to the father’s custody and was granted full legal and physical custody. The mother was prohibited from visitation without approval from the court.
The mother now seeks visitation with the younger son. The mother remains incarcerated.
In support of her petition for visitation, the mother argued that she should be permitted visitation with her younger son because there was a change in circumstances since visitation was prohibited. While in prison, she had participated in several parenting classes, a trauma class, and a basic class in non-violent communication. However, the mother was evasive when asked if would be in her child’s best interest to visit with her. She also denied ever abusing her younger son.
In New York, the standard for modify a child custody or visitation order is that there must be a change in circumstance. See Fallarino v. Ayala, 41 A.D.3d 714, 714 (NY A.D.2d Dep’t 2007). A change will not be made unless it is in the best interests of the child to do so. The standard is no different in instances where a parent is incarcerated. Parental involvement in their child’s life is presumed to be in the best interests of the child. When it comes to custody cases, courts always seek to award joint custody and to give the noncustodial parent liberal access to their child. Thus, the court noted that visitation with the noncustodial parent is presumed to be in the best interests of the child.
Where there is evidence that limited parental access is in the best interests of the child, the court will do so. Thus, if there is a preponderance of evidence that granting visitation would be inimical to the child, the court will deny it. However, the court also noted that deny visitation to a parent, including an incarcerated parent, is a drastic remedy. In other words, the fact that a parent is incarcerated is not enough to deny visitation. Factors the court will consider in determining whether visitation is appropriate include:
- Distance the subject child would need to travel to visit with the incarcerated parent,
- Method of transportation to be utilized
- Who would accompany the subject child
- Severity of petitioner’s sentence
- Age of the child
- Child’s previous relationship with the child
- Whether child has visitation experience in a prison setting
Ellett v. Ellett, 265 A.D.2d 747, 748 (NY App. Div. 4th Dep’t 1999
The court denied the mother’s petition. First, the court did not find that there was a change in circumstances. She continued to deny that she abused her older son and refused to answer questions related to that topic. The did not agree that the mother’s taking classes while incarcerated was enough of a change in circumstance.
Second, the court found that the mother was unable to articulate how visiting her would be beneficial to the child. Lastly, the father successfully rebutted the presumption that visitation would be in the best interests of the the child by introducing evidence of the injuries to the older child.