Articles Posted in Visitation

In the case of YYW v. Z.G. 74 Misc. 3d 1206 (2022), the Family Court considered a case where the petitioner sought visitation of one of her children.  However, the petitioner was incarcerated. She had been convicted for severely abusing her child while she was pregnant with another child. When making a decision related to custody of visitation such as a modification of an existing order, the Family Court always looks at what is the best interests of the child.

When seeking to modify a custody order, the Family Court carefully assesses several factors to ensure the child’s best interests are paramount. The petitioner must demonstrate a substantial change in circumstances that necessitates modification. This change need not be extraordinary but must unequivocally serve the child’s welfare. The court evaluates the stability of the child’s life, the fitness of each parent, and the prior custody award, taking into account the totality of circumstances before making any modifications to the existing custody order.

Here, the case is complicated not only by the fact that the petition is incarcerated, but the reason for her incarceration is relevant to the best interests of the child issue. The court must navigate the delicate balance between maintaining the child’s safety and acknowledging the parental rights of the incarcerated individual.

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.

Background

In the case of In re Davis (1996) the Appellate Division was asked to review a case involving parental visitation rights when where one parent is incarcerated. In New York, parental incarceration alone does not automatically preclude visitation rights, emphasizing the overarching principle that the best interests of the child remain paramount. Courts weigh various factors, including the nature of the incarceration setting, the distance involved, and the potential impact on the child’s well-being. While visitation may be deemed appropriate, the frequency and conditions are meticulously assessed to align with the child’s welfare. The case law underscores the need for a careful balance between a parent’s desire for visitation and the child’s best interests, ensuring a nuanced approach to each situation.

Background

In re Davis centers on a visitation dispute between parents who divorced in 1993 and share one child born in 1992. The mother was granted sole custody with no provision for visitation by the father. The father, incarcerated for the majority of the child’s life, was serving a prison term of 6 to 12 years at Gouverneur Correctional Facility in St. Lawrence County.

Khan v. Schwartz, 201 A.D.3d 718 (N.Y. App. Div. 2022), involves a child custody dispute where the mother seeks to modify the in-person parental access provisions of a prior order that granted sole legal and physical custody of the children to the father.

In New York, the standard for supervised visitation involves assessing whether unsupervised visitation would be detrimental to the child. Generally, a noncustodial parent is presumed to have reasonable rights of visitation, and the denial of those rights is considered a drastic remedy. The court may order supervised visitation if there is substantial evidence demonstrating that unsupervised visitation would be harmful to the child’s welfare. The court carefully weighs the best interests of the child against the noncustodial parent’s visitation rights, taking into account any allegations of misconduct or abuse. The decision may involve considering the input of professionals, such as social workers or psychologists, and the commitment of responsible individuals to supervise visitation adequately. The overarching principle is to strike a balance that ensures the child’s well-being while respecting the noncustodial parent’s rights.

The case of Paul v. Donna, decided by the New York Appellate Division in 1991, delves into the intricate balance between a noncustodial parent’s visitation rights and allegations of sexual abuse. The father appeals for supervised visitation with his two children after the mother accuses him of sexually abusing their six-year-old daughter. The court’s decision revolves around the crucial determination of whether supervised visitation by the father’s blood relatives is an adequate safeguard against potential harm to the child.

Background

New York courts adhere to a comprehensive approach in determining custody and visitation arrangements. The paramount consideration is the best interests of the child, evaluated through a myriad of factors such as parental stability, financial well-being, and the ability to provide a nurturing environment. While the court aims to ensure both parents maintain a meaningful relationship with the child, it prioritizes the child’s safety and well-being. The process often involves fact-finding hearings, and the court may opt for a plenary hearing or demand clear articulation of factors influencing its decision. The overarching goal is to make determinations founded on a thorough assessment of the circumstances, promoting the child’s welfare.

The case of Lemon v. Faison, a 2017 decision by the New York Appellate Division, delves into a family law dispute concerning visitation rights, custody, and an order of protection. It also involved a father attempted to re-establish a connection with his children after being incarcerated.

Re-establishing parental rights, specifically seeking custody or visitation, after being released from prison is a nuanced legal process. Courts generally consider factors such as the nature of the offense, the parent’s behavior post-release, and the best interests of the child. While completing rehabilitation programs and demonstrating a stable environment can bolster a parent’s case, the court’s primary concern is the child’s welfare. The level of involvement granted often depends on the court’s evaluation of the parent’s capacity to provide a safe and nurturing environment, balancing the parent’s rights with the child’s best interests.

In Grisanti v. Grisanti, the Westchester Family Court was ask by the petitioner, the mother, to change the visitation rules established in a 1996 divorce agreement. The court had to carefully consider this request, especially because one of the children involved has high-functioning autism and learning disabilities. The challenge was finding a balance between what the mom wanted regarding visitation and what would be in the best interest of the child with special needs. The court needed to navigate this complex situation to make a fair decision for everyone involved.

In New York, the standard for modifying visitation arrangements is centered on the best interests of the child involved. When a parent seeks a change in visitation rights, they bear the responsibility of demonstrating that the proposed modification is in the child’s best interests. The court employs a comprehensive evaluation, considering various factors to determine the child’s well-being.

The paramount consideration is the child’s physical and emotional health and safety. The court assesses the existing relationship between the child and each parent, the ability of the parents to provide a stable and nurturing environment, and any history of domestic violence or substance abuse. Additionally, the court takes into account the child’s preferences, depending on their age and maturity.

In the Matter of Panetta v. Ruddy, the court considered whether to grant the mother visitation of her child. In New York, the standard for a court to deny visitation is high, as it involves a drastic measure that infringes on a noncustodial parent’s rights. Denial of visitation rights should only occur when substantial evidence demonstrates that allowing visitation would be detrimental to the child’s welfare. This stringent standard is in line with the recognition that noncustodial parents are entitled to reasonable visitation rights, emphasizing the importance of maintaining meaningful relationships between parents and their children. The court considers the best interests of the child as paramount, evaluating factors such as the child’s safety, well-being, and overall welfare. Generally, visitation determinations are made after a comprehensive evidentiary hearing to ensure a thorough examination of the circumstances. However, if the court possesses sufficient relevant information to make an informed decision regarding the child’s best interest, a full hearing may not be necessary. The court’s determination hinges on its assessment of witness credibility, the parties’ character, temperament, and sincerity, and will only be disturbed on appeal if it lacks a sound and substantial basis in the record.

Background

In this case, the child’s older half-brother committing sodomy on him while under the mother’s care. As a result, the half-brother faced adjudication as a juvenile delinquent. The Family Court concluded that the child encountered a “polluted environment” during visits with the mother. The Family Court awarded sole custody of the child to the father and suspended the mother’s visitation visitation rights.

The case of Thompson v. Yu-Thompson (837 N.Y.S.2d 313, 2007) involves the concept of therapeutic visitation. Supervised therapeutic visitation in New York involves a structured setting where a mental health professional oversees and facilitates visits between a parent and child. This type of visitation is typically ordered by the court when there are concerns about the safety or well-being of the child during unsupervised visits. The therapeutic component implies that the visits serve a therapeutic purpose, addressing specific issues such as parent-child bonding, communication, or emotional well-being. This arrangement ensures that the child’s welfare is prioritized while allowing the parent an opportunity to maintain or rebuild a relationship under professional guidance. The decision to order supervised therapeutic visitation is based on the unique circumstances of each case.

Background

Upon petition by the father, the Family Court of Westchester County allowed him to have supervised therapeutic visits with the child. The mother, dissatisfied with the court’s order, appeals from a decision entered on January 11, 2006.