Petitioner was an incarcerated in the New York correctional system and has admitted paternity of a child. He started this proceeding to establish visitation with his child after the mother would allow the child to visit their father in prison. The family court granted the petition, awarding periodic short visits with the child, who was three years old at the time.
The family court noted that the law in New York presumes visitation with a noncustodial parent to be in the child’s best interests. The fact that the parent is incarcerated is not an automatic reason for blocking visitation.
The court determined that the father was involved in the child’s life in a meaningful way prior to him being incarcerated. The father seeks to maintain this relationship. The court has felt that the child was old enough to travel, and would benefit from the relationship. The court also felt that the length of the father’s incarceration would be detrimental to the relationship.
The appellate court affirmed the family court order finding a sound and substantial basis in the record to support the court’s determination and grant the order.
The father has made an ongoing effort to maintain the relationship that he has with the child (Culver v Culver 82 AD 3d 1296).
The respondent contends that the lower court employed an incorrect legal standard. We affirm.
The court cites Weis v Weis 52 NY2d 170 1981). We held that initially prescribing the or approving custodial arrangements absent exceptional circumstances such as those in which it would be harmful to the child in any way.
It is generally accepted that parental visitation is in the best interest of the child in the absence of proof otherwise (In the matter of Nathaniel T. 97 AD2d 973). In the present case, the family court noted that NY law presumes visitation with the noncustodial parent to be good for the child, and in their best interests.
This presumption runs contrary to the ruling in Tropea v Tropea 87 NY2d 727 which stated that where a parent seeks approval of a relocation plan that would prevent visitation by the custodial parent the presumptions and threshold tests that favor one parent over another must not be used.
This court said their holding was not that you can’t use a presumption, but rather, that each relocation must be considered on its own individual merits.
The rebuttable presumption in favor of visitation applies when the parent seeking visitation in incarcerated.
The fact that the petitioner is incarcerated alone doesn’t deem the visitation order inappropriate, but a demonstration that the visitation would be harmful to the child would justify the request (Mohammed v Cortland County Department of Social Services 186 AD2d 908.
The denial of the right of the father to visit or see the child is a drastic decision that should be based on substantial evidence (Herb v Herb 8 AD2d 419).
Here, the lower court used the appropriate legal standard, using the presumption in favor of visitation and considering whether the respondent rebutted the presumption through showing by a preponderance of the evidence that the visitation would be harmful to the child.
The respondent’s second challenge was that there is no solid basis for testimony (Bunim v Bunim 298 NY 391 for finding that visitation was in the child’s best interests. The lower court discussed the distance of the prison and whether the extended time spent traveling would harm him in any way. In this instance, there is sufficient support in the record that travel would not harm the child.
The court held that the Order of the Appellate Division should be affirmed without costs.
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