Seneca County Family Court judge finds father's visitation not in

The petitioner, who was incarcerated for causing the death of his infant daughter's half-brother, sought an order directing visitation with respect to his daughter.

Reviewing the facts in The Matter of Dominique M., Seneca County Family Court Judge Dennis F. Bender found that visitation was not in the child's best interests.

The Facts

The child, Dominique, was born out of wedlock to the parties on Sept. 22, 2003.

Dominique's father was incarcerated, at the time of her birth, for Manslaughter in the Second Degree. The victim was the son of the respondent. He died due to the petitioner's reckless behavior on Dec. 26, 2002.

The respondent was 21 years old, resided with her mother and Dominique, and was employed full time but had nominal income. Seventy percent of her income went to transportation and child daycare costs.

There was no evidence of the father's willingness or ability to defray the cost of childcare.

Dominique never referred to her father as daddy. She did not know him and did not speak of him.

The respondent took Dominique to visit her father at the Orleans Correctional facility on three or four occasions.

The respondent terminated these visitations when she realized that the petitioner was responsible for her son's death. She testified that he had lied to her and that she did not want to accept that he had killed her son.

The father sought an order for direct visitation with Dominique.

Court's Analysis

Incarceration alone is not enough to preclude visitation, Crowell v. Livziey, 20 AD3d 923, (Fourth Dept., 2005); Davis v. Davis, 232 AD2d 773, (Third Dept., 1996).

Denial of visitation is justified upon proof of a compelling reason or substantial evidence that visitation would be detrimental to the child's welfare, Thomas v. Thomas, 277 AD2d 935 (Fourth Dept., 2000).

Judge Bender concluded that [w]hile the homicide of the child did not constitute murder so as to presumptively preclude an order of visitation (DRL 240[1-c]), the petitioner in this matter did recklessly cause the death of the child's half-brother, thereafter lied to the respondent about what occurred, and apparently continued to do so even after he was convicted of the crime.

There was no evidence of any remorse by the petitioner for his actions which caused the half-sibling's death, nor of any rehabilitative actions on his part to eliminate the likelihood he might pose a risk to Dominique. ...

The petitioner had been incarcerated for the entire life of the child, he had not seen her in over a year and he had no current or past relationship with her.

The court found that the record [was] devoid of any evidence by which the court might find the petition [was] motivated by actual love and affection for the child as compared to a singular desire for distractions while incarcerated.

Conclusion

Judge Bender held under these unique facts, there was substantial evidence that visitation would not be in the child's best interests.

Further, the financial circumstances of the parties was found to be a sufficiently compelling reason to negate any obligation of the respondent to transport the child for visitation, Williams v. Tillman, 289 AD2d 885 (Third Dept., 2001); Ellett v. Ellett, 265 AD2d 747 (Third Dept., 1999).

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