New York Family Law Blog
A New York Family Lawyer said that, in this case a father who is serving 25 years to life for murdering the mother of his children (i.e., murder in the second degree) seeks to modify the provisions of the custody order which give him no communication, contact or visitation rights with his children. The motion to dismiss his petition is granted because there is no change of circumstances to justify even getting to a best interests test. He also alleges a violation of certain alleged rights to get information about the children under the custody order. The two subject children one boy (born December 27, 2000, age 9) and one girl (born January 29, 2002, age 8). The respondents herein, the maternal aunt and uncle of the children, were awarded custody of the children after the children’s mother was murdered by their father, the petitioner herein. On October 19, 2009, the father filed two sworn, pro se petitions.
A New York Child Custody Lawyer said that, the father’s first petition seeks to modify a prior Order of Family Court, alleging that the uncle had told the father that the children wish to visit the father and have written and telephone contact with the father, and that they assent to visitation and understand the father’s incarceration and emotional and other ramifications. On December 2, 2009, counsel for the aunt and uncle cross-petitioned for summary judgment dismissing the father’s visitation petition, alleging that the father failed to state a sufficient change of circumstances to support a modification.
A Suffolk Visitation Lawyer said that, the father’s second petition alleges a violation of the prior order of Family Court. The father alleges that the aunt and uncle willfully failed to obey the court order by not providing at least annual updates regarding the status of the children’s health, education and general well-being as well as updated photographs of the children. Counsel for the aunt and uncle also cross-petitioned for dismissal of this violation petition, arguing that the judge struck from the order the provisions to which they had otherwise agreed which would have allowed the respondents to initiate contact or communication with the father. Thus, they contend there has been no violation. Counsel for the father opposed both motions for dismissal, after time was extended for him to respond through counsel in writing. The Children’s Attorney filed papers in support of the motions, requesting that both petitions be dismissed.
A Westchester County Family Lawyer said that, the Order of Custody in question was signed on April 21, 2006 (entered April 21, 2006). This order reflected the consent and stipulation of the parties as placed on the record on January 11, 2006, and awarded, among other provisions, full legal and physical custody of the two subject children to the aunt and uncle. The order also included an order of protection requiring that the father stay away from the two children, refrain from communication with them, and refrain from any criminal conduct against them. A transcript of the proceedings on January 11, 2006, from which the final order was generated, contained the specific terms and conditions each of the parties agreed to, as well as the judge’s statement that she was “willing to accept the settlement in part” and that there was involved in this proposed settlement an ordering paragraph which allowed for some communication of information about the children to the respondent father and “I’m not going to approve of that”, and “the only reason that I would approve of it is if there was some basis that this would benefit the children. I do not have that basis at all.”
The issue in this case is whether petitioner’s motion to modify the provisions of the custody order which give him no communication, contact or visitation rights with his children.
The violation petition is easily dismissed. Even the father himself agrees, as set forth in his handwritten answer to respondents’ answer and cross-petition filed Dec. 8, 2009, that the Judge struck the language from the proposed order that would have allowed communication initiated by the respondents. He states that the uncle tried to give him photos and other information at the correctional facility, but could not because of correctional facility rules. He argues this means the respondents thought they could provide information. It does not matter what they thought. It does not matter that the respondents initially agreed to provide the father with information about his children. They are not entitled to disobey the court’s order. Any alleged failure on their part to provide information that they had agreed they would provide before the court ordered they were not to do so obviously is not a violation of an order. The order and transcript are extraordinarily clear. Accordingly, the violation petition is dismissed with prejudice.
Here, a Westchester County Child Custody Lawyer said the father asks that the children visit him at the Correctional Facility, and that he be allowed telephone and written contact with the children. Very relevant to this visitation modification petition is the 1998 amendment to the Domestic Relations Law, section 240, prohibiting visitation by a parent who murdered the other parent (or a sibling) of his/her child, unless certain specified conditions are met, none of which are met here.
Section 240 of the Domestic Relations Law, captioned “Custody and child support; orders of protection”, says in its relevant part, 1-c. (a) Notwithstanding any other provision of this chapter to the contrary, no court shall make an order providing for visitation or custody to a person who has been convicted of murder in the first or second degree in this state, or convicted of an offense in another jurisdiction which, if committed in this state, would constitute either murder in the first or second degree, of a parent, legal custodian, legal guardian, sibling, half-sibling or step-sibling of any child who is the subject of the proceeding. Pending determination of a petition for visitation or custody, such child shall not visit and no person shall visit with such child present, such person who has been convicted of murder in the first or second degree in this state, or convicted of and an offense in another jurisdiction which, if committed in this state, would constitute either murder in the first or second degree, of a parent, legal custodian, legal guardian, sibling, half-sibling or step-sibling of a child who is the subject of the proceeding without the consent of such child’s custodian or legal guardian. (b) Notwithstanding paragraph (a) of this subdivision a court may order visitation or custody where:
(I)(A) such child is of suitable age to signify assent and such child assents to such visitation or custody; or (B) if such child is not of suitable age to signify assent, the child’s custodian or legal guardian assents to such order; or (c) the person who has been convicted of murder in the first or second degree, or an offense in another jurisdiction which if committed in this state, would constitute either murder in the first or second degree, can prove by a preponderance of the evidence that: (1) he or she, or a family or household member of either party, was a victim of domestic violence by the victim of such murder; and (2) the domestic violence was causally related to the commission of such murder; and (ii) the court finds that such visitation or custody is in the best interests of the child.
As indicated above, at the time of her order, the Judge expressly found visitation not in the best interests of the children. With his modification petition, the father submits that things have changed and visitation is now appropriate. This petition was met by respondents’ motion for summary judgment dismissing the petition. Here, the aunt and uncle have moved for summary judgment based on a purported failure of the father to articulate a triable issue of fact. Father’s counsel submitted an affirmation from herself, without any further affidavit by the father to supplement the factual allegations in his sworn petitions.
The law in this area is well settled. A person seeking to modify a prior Family Court order regarding custody or visitation must demonstrate in his/her moving papers, a prima facie case of facts sufficient to establish a change of circumstances which could warrant modification. Such cases may advance to trial, at which time the existence of an actual change of circumstances must be established (if disputed), and the merits of granting or denying the modification, even if a change of circumstances is proven, depends on the best interests of the children. Without a sufficient change of circumstances alleged, a motion for summary judgment or to dismiss can be granted. Without a sufficient change of circumstances proven at an evidentiary hearing, there is no basis for the modification and dismissal of the petition or petitions is then warranted. Counsel for the aunt and uncle argues in the summary judgment motion that the father has failed to allege a sufficient change of circumstances. A party moving for modification of a prior order regarding visitation must have at least some evidentiary showing to warrant the matter proceeding. A court must review the pleadings as submitted, and determine if there is at least enough alleged to proceed to an evidentiary hearing. Evidentiary hearings are simply not available for the asking.
The father’s argument is based solely on information he claims to have received from the children’s uncle. He alleges: (a) the uncle informed the father the children want to visit and to have written and telephonic contact; (b) the uncle informed the father that the children assent to the visits; (c) the uncle informed the father that the children understand the nature and ramifications of the father’s incarceration; (d) the uncle informed the father that the children are bonded and stabilized with the respondents’; and (e) the uncle informed the father that he would bring the boy to the prison for a visit, but would leave before coming in if the child exhibited any fear.
In the pending motion for summary judgment filed by the aunt and uncle, they deny the allegations of the father through their verified answer and cross-petition, and they oppose the relief he is requesting. The custodial parties clearly indicate that they do not assent to bringing the children to visit their father in the state prison thus eliminating one of the three exceptions to the law presumptively against visitation in such cases. There is no allegation that the father was a victim of domestic violence, thus eliminating a second of the three exceptions to the law presumptively against visitation in such cases. The only possible exception is that the children (1) consent to visitation and (2) are of suitable age and discretion to consent to visitation.
Unfortunately for the father, the only person who says they consent is the father and he could not know this first hand as he has had no communication with the children since going to prison. The father did not even allege that the children’s current position at the time he submitted sworn allegations was that they wanted to visit. The aunt and uncle who have custody of the children deny that the children consent to visitation. The father’s self-serving, double-hearsay allegations are not enough to meet this part of the exception to the presumption against visitation in such cases. He could not testify TO this in court. His testimony would be inadmissible. There is not a shred of credible evidence proffered that would support a finding that the children do in fact consent to visit.
Accordingly, the court held that, the cross-petitions/motions filed by the Respondents requesting dismissal of the two pending petitions, are granted, and it is further ordered that the petition alleging a violation of the prior Order of Custody filed on October 19, 2009 by the Petitioner is dismissed with prejudice; and it is further ordered that the petition for modification of the prior order of Custody filed on October 19, 2009 by the Petitioner is dismissed with prejudice.
There is a rule under the Domestic Relations Law, section 240, that prohibits visitation by a parent who murdered the other parent (or a sibling) of his/her child, unless certain specified conditions are met. If these conditions are not met, seek the assistance of a Suffolk Visitation Attorney and Suffolk Order of Protection Attorney at Stephen Bilkis and Associates in order to divest the visitation rights of the putative father.