New York Court Holds Incarceration Does Not Diminish Parental Visitation Rights, But Denies Incarcerated Father’s Visitation Petition Based on Best Interests of the Child

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Custody battles are stressful for the parties. Whether you are navigating the legal system for the first time, or you have been embroiled in a custody dispute for several years, it is critical that you have a knowledgeable and seasoned attorney by your side. With more than 30 years of experience assisting New York residents with family law issues, attorney Ingrid Gherman is prepared to help you assert your legal rights in a child custody dispute.

A recent New York child custody opinion discusses the impact that the incarceration of one parent has on his or her visitation rights. The facts of the case are as follows. A father filed a visitation petition against the mother of their seven-year-old autistic son, seeking visitation rights.┬áThe parents resided in an apartment in the Bronx, where they had one child. Roughly three months after the child was born, the father moved out of the apartment and made attempts to be part of the infant son’s life. After some time, however, his attempts stopped.

The father filed a custody petition in 2009 and another in 2010. Both were dismissed without prejudice. In response to the petitions, the mother decided to allow the father visits with the child during his day off. The father would pick up the child from the apartment and then drop him off later that day. The visits continued until the father became incarcerated in 2011 after being convicted for the murder of an ex-girlfriend’s three-year-old child. In that case, the father was accused of hitting the victim repeatedly because she was not listening to him and refusing to eat. He was also accused of failing to seek medical attention for the victim. The father did not see his child for seven years after his initial incarceration, although a program allowed for inmates to have visits with their children. The father did, however, join a waiting list for parenting classes and anger management classes.

The father’s most recent visitation petition argued that his status as an inmate does not negate the standard presumption that visits are in the best interest of their child. During trial, the father was asked several questions about his relationship with the child and his attempts at maintaining a relationship. The father testified that he did not make any attempts to contact the child since his incarceration. He also testified that he did not learn about the child’s autism diagnosis and related development issues after he filed the petition. When asked why he did not seek visitation sooner, the father testified that he was waiting for the criminal action against him to be resolved.

Several parties offered testimony, including the child’s mother. In addition to testifying about the child’s medical condition, the mother indicated that she believed visitation at the prison would be against the child’s best interests because the child struggles with strangers, long rides in a car, and loud noises. She also testified regarding the logistical hurdles she would face if she were required to bring the child to the prison. The mother had since moved to New Jersey and had other minor children in her care.

In determining whether the father’s visitation petition should be granted, the court first stated the overarching rule that the court must make all efforts to determine the course of action that is in the child’s best interests and that will promote his or her happiness and welfare. The court then stated that the rebuttable presumption in favor of granting visitation applies even when the parent seeking visitation is incarcerated. In denying the father’s petition, however, the court concluded that bringing the child to the prison would likely be harmful to the child, given the child’s autism and difficulty with certain social situations.

If you are involved in a child custody or visitation dispute, attorney Ingrid Gherman is prepared to help you protect your legal interests. During this emotional and stressful situation, it can be daunting to understand a proper legal course of action to take. Our team of seasoned legal professionals can provide you with the compassionate, responsive, and dedicated legal counsel that you and your family deserve. To schedule your free consultation, call us now at 219-941-0767 or contact us online.

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