C.S. v M.M.

[*1] C.S. v M.M. 2009 NY Slip Op 51803(U) [24 Misc 3d 1239(A)] Decided on June 12, 2009 Family Court, Suffolk County Genchi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 12, 2009
Family Court, Suffolk County

C.S., Petitioner,

against

M.M. and B.H., Respondents.



V-7243-09

Joan M. Genchi, J.

This visitation matter has come before this Court by way of an Order to Show Cause Dated January 5, 2009 and filed April 23, 2009. The matter was scheduled for a conference/hearing on May 13, 2008. The petitioner made application for a telephonic conference since he is currently incarcerated at Auburn Correctional Facility. Arrangements were made between the Suffolk County Family Court with the correctional facility such that the petitioner appeared on May 13, 2009 by way of audio and video. The petitioner was represented by Kevin Gilvary, Esq, . The respondent, M. M., was present in the courtroom and she was represented by John Ebel, Esq. Petitioner's attorney made an oral motion to add B. H. to the caption as a respondent. There was no opposition and his motion oral was granted. Respondent, B. H., was represented by Karl Bonheim, Esq.

The petitioner seeks visitation with his son, C. S., Jr. (DOB 12-01-06). Prior to the commencement of this visitation hearing, petitioner consented to custody of the child being granted to the child's maternal grandmother, M. M., with whom the child has resided for most of his young life. The child's mother, respondent B. H., also consented to custody of the child being granted to her mother, M. M.. Custody of the child, C. S., Jr., therefore, was granted upon consent of the parties to Marilyn Montague under dockets #

V-9532-08 and #

V-9533.08.

As set forth above, petitioner is presently incarcerated in Auburn Correctional Facility, a maximum security prison located in upstate New York. He was arrested on June 23, 2007 when the child was just shy of 6 months old. The petitioner remained incarcerated in the Suffolk County Jail while awaiting trial. He was convicted of Attempted Murder (PL125.25 Class A Felony), Assault (PL120.10 Class B Felony) and Aggravated Criminal Contempt (PL125.52 Class D Felony) on June 4, 2008 after a jury trial. He was sentenced on July 2, 2008 to 24 years [*2]in prison on the Attempted Murder and Assault charges. He was sentenced to 2 years in prison and 6 years probation on the Aggravated Criminal Contempt charge. At the time of the hearing, petitioner had been at Auburn for approximately 90 days. He testified that he is currently participating in Phase II of a program "Thinking for a Change." He described this program as one that will assist him in his relationship with his son "because it is about incarcerated parents dealing with their children." The petitioner's earliest release date will be in the year 2027. The child is now 2 ½ years old and will be will be 21 years old at the time of the petitioner's earliest release date.

The victim of these crimes is respondent, B. H. She is the mother of the child, C. S., Jr. Thankfully, the child was not present during the altercation between petitioner and B. H. However, scars from knife wounds were clearly visible on the victim's neck at the time of the hearing.

The petitioner denies he committed these crimes and he testified that he is appealing the case. He also testified that he had not spent time in any state or county facility for any crime other than those for which he is presently incarcerated. He further stated he has not been convicted of any other crimes. A continuance to June 11, 2009 was granted in order to allow respondent's attorney to obtain and produce petitioner's criminal record of convictions, if any. No such document was received by the Court as evidence.

All parties testified that the petitioner is the father of the child. The petitioner claims to have signed an acknowledgment of paternity and believes that he is named the father on the child's birth certificate. A continuance to June 11, 2009 was granted to the petitioner in order to allow him to produce the child's birth certificate. The birth certificate was produced and entered into evidence by the Court's own motion as Court Exhibit #

1. It names the petitioner as the father of the child.

The petitioner testified that he had contact with the child prior to his arrest in June of 2007. He asserted that he resided with the child from December of 2006 to March of 2007

However, both the child's mother and the child's maternal grandmother, Marilyn Montague denied that the petitioner actually resided with them. The Court credits their testimony that the petitioner occasionally stayed overnight but did not reside with either of them.

It is uncontroverted, however, that the petitioner helped care for the child in that he changed the child's diapers, bathed him, picked him up when he cried and gave him bottles.

The petitioner sent two letters to the child since he has been incarcerated. The maternal grandmother intercepted both of them and returned them to the petitioner. Petitioner has received no photographs of the child except for those sent to him by his mother. These are photographs taken at the hospital after the child's birth.

Petitioner claims to have been financially supporting the child prior to his arrest. [*3]

The petitioner seeks visitation with the child once per month at the facility. After being permitted to confer with one of the correctional officers present with him the petitioner testified that travel time from Long Island to Auburn Correctional Facility would be approximately 5 to 6 hours one way. He further testified that the facility allows inmates to visit with their children Monday thru Friday between 11:00AM and 3:00PM in an area that is "set off to the side". He further testified that there were toys for the children to play with in this area. The petitioner stated that he wanted visitation for emotional reasons for both himself and the child. He stated that the child "needs a father around" to prevent the child from making the same mistakes he has made in his life.

When asked how the child would get to the facility the petitioner testified that his mother, M.. S. and/or his sister, S. S. who both live in Suffolk County would transport the child. However, he acknowledged that the child does not know either of them.

The child's custodian, M. M. testified that in the event the petitioner again sent letters to the child, she would read them to the child and that she would send photographs of the child as he grew-up to the petitioner. She further stated that upon the child reaching perhaps seven (7) years of age and when the child could better understand what happened, she would allow the child to visit the petitioner if the child showed an interest in doing so. It is clear to the Court from the testimony of the child's custodian, M. M., that she recognizes the need of the child to slowly become aware...at the right time and piece by piece...of exactly what has occurred between his parents and why his father is incarcerated.

"It is generally presumed to be in a child's best interest to have visitation with his or her non-custodial parent and the fact that a parent is incarcerated will not, by itself, render visitation inappropriate." ( Matter of Davis v. Davis, 232 AD2d 773, 648 NY2d 742; Matter of Ellett v Ellett, 265 AD2d 747, 698 NY2d 740.) However, " a denial of an application for visitation is proper where evidence demonstrates that visitation would not be in the child's best interest.' " (Matter of Bougor v. Murray, 283 AD2d 695, 724 NYS2d 215, quoting Matter of Ellett v. Ellett, supra . )

After careful consideration of all the evidence both testimonial, documentary and physical adduced during the hearing on this matter, and in consideration of the parties demeanor and their credibility, the Court finds that it is not in the best interest of this child to visit the petitioner at this time.

The Court finds that egregious circumstances exist in connection with this matter. The victim of petitioner's attempted murder and assault convictions is the mother of the child. She carries scarring as a result of these crimes.

The Court finds that even if it were to order visitation, the exceptional circumstances the facts of this case render it highly inappropriate to order the victim or the victim's mother, M. M. to transport the child to and from Auburn Correctional Facility for the purpose of visitation. The [*4]Court also finds that the petitioner does not have any viable alternate plan in place addressing how the child would be transported to and from the facility for visitation purposes. Although the petitioner offered his mother and sister as resources for this purpose, the petitioner admitted that the child does not know either of them. The Court finds it would be inappropriate and not in the child's best interest to be placed in an automobile with strangers, embark upon a 6- hour trip with them to Auburn, New York, be placed in a maximum security environment, go through the security procedures required at a maximum security facility, spend perhaps one hour visiting with the petitioner (whom the child does not know) and then endure another 6-hour automobile ride back home to Long Island. It is just not feasible. It is just not in the child's best interest. Such an experience would more likely than not confuse and traumatize this young child.

Therefore, although the Court commends the petitioner in his efforts to forge a relationship with his son, the Court declines to order any schedule of visitation between the petitioner and his son.

However, it is;

ORDERED that the petitioner shall be permitted to send one card or letter of appropriate content per week to the child, C. S., Jr. The child's custodian, M. M., shall review each card or letter to ensure that its content is appropriate for the child and she shall read the appropriate content to the child until such time as the child is able to read to himself , and it is further,

ORDERED that the petitioner shall be permitted to make one telephone call per month at his own cost and expense from the facility to the child, and it is further,

ORDERED that the child's custodian, M. M., shall send to the petitioner, no less than four times per year, current photographs of the child.

The forgoing constitutes the decision and an order of this Court.

ENTER,

________________________________

Judge of the Family Court

Dated:____________