Matter of Thomas K. v David C.

[*1] Matter of Thomas K. v David C. 2010 NY Slip Op 51853(U) [29 Misc 3d 1216(A)] Decided on September 30, 2010 Family Court, Monroe County Gallaher, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2010
Family Court, Monroe County

In the Matter of a Proceeding for Visitation Under Article 6 of the Family Court Act Thomas K., Petitioner

against

David C. and Christine C., Respondents



V-9914/15-05/09A & B



Thomas K., by and with Chelsea Palmisano, Esq., Assistant Conflict Defender

David and Christine C., by and with Jennifer Fazio, Esq.

Anthony Leavy, Esq., Attorney for the Children

Patricia E. Gallaher, J.

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. That petition is also dismissed because pursuant to the alleged rights did not exist.

PROCEDURAL POSTURE

The two subject children are Thomas (born December 27, 2000, age 9) and Rachell (born January 29, 2002, age 8). The respondents herein, Christine and David C., the maternal aunt and uncle of the children, were awarded custody of the children after the children's mother was murdered by their father, Thomas K. (hereinafter "father") , the petitioner herein. On October 19, 2009, the father filed two sworn, pro se petitions.

The father's first petition seeks to modify a prior Order of Family Court (V-09914/15-05/09A), 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.

The father's second petition (V-09914/15-05/09B) 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 provisionsto which they had otherwise agreedwhich 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. For the reasons set forth below, both petitions are dismissed, with prejudice.

THE UNDERLYING ORDER

The Order of Custody in question was signed by the Hon. Marilyn O'Connor 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, Christine and David C.. 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. The ordering paragraph directing no communication reads in its entirety, "ORDERED, that the Respondent shall refrain from communication or any other contact by mail, telephone, email, voice mail, via a third party or other means with Thomas Z. K. and Rachel K. except as initiated or approved by the [*2]Petitioners". That last clause was crossed out and that change was initialed by Judge O'Connor herself—thus removing the aunt and uncle's option to initiate or approve of communication between the father and his children.

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." (David C. and Christina C. vs. Thomas K., Monroe County Family Court, January 11, 2006 transcript, pp 2-3, emphasis added.)

Judge O'Connor also said, "I am not saying that at some time in the future Mr. K. could not make an application to the court for whatever relief he wants." (Id., p 3.) She further extended this ban on communication and information to third parties, saying, "No one is to provide him with any information about these children. No pictures, no information, nothing." (Id., p 3-4.)

The father's attorney attempted to reserve an objection, but the court stated, "I don't think if we've got a consent that I can note your objection. If we've got an objection, then I've got to have a trial. If he's consenting, then he's consenting. Then, the attorney indicated they would consent to the "the order as you stated" (id., p 4.) and the father personally affirmed his consent to the terms and conditions on the record. He was asked by the court, "Mr. K., do you have anything you want to say? In other words, you are consenting to this sole custody with absolutely no conditions reflecting any communication to you?" He replied, "Yes, I am, your Honor." (Id., pp. 4-5.)

The Children's Attorney, Anthony Leavy, Esq., recommended this resolution and consented to it.

VIOLATION PETITION

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 Judge O'Connor struck the language from the proposed order that would have allowed communication initiated by the C.'s. He states that David C. 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 C.'s thought they could provide information.

It does not matter what they thought. It does not matter that the C.'s 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.

MODIFICATION PETITION

Here, the father asks that the children visit him at the Elmira 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, [*3]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.[FN1]

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 beenconvicted 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 ofdomestic 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. (Emphasis added.)

As indicated above, at the time of her order, Judge O'Connor 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.

The Court of Appeals established the appropriateness of summary judgments in Family Court proceedings in Suffolk County DSS v. James M. (83 NY2d 178 [1994]). Summary judgment is designed to expedite all civil cases by eliminating from the trial calendar claims which can be [*4]properly resolved as a matter of law. ( See Andre v. Pomeroy, 35 NY2d 361 [1974]). Where the moving party has demonstrated that it is entitled to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a triable issue of fact (or tender an acceptable excuse for failing to do so). (See Zuckerman v. City of New York, 49 NY2d 557 [1980]).

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 judgement 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. (See Reese v. Jones, 249 AD2d 676 [3d Dept, 1998] citing DeBenedetto v. DeBenedetto, 245 AD2d 834, 835 [3d Dept, 1997]). 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 (David W. v. Julia W., 158 AD2d 1 [1st Dept, 1990]). A court must review the pleadings as submitted, and determine if there is at least enough alleged to proceed to an evidentiary hearing. (See Matter of Deborah P. v Kimberly B., 24 AD2d 1289 [4th Dept, 2005]). Evidentiary hearings are simply not available for the asking. In Matter of Folsom v Folsom (12 AD3d 962 [3d Dept 2004]) the court specifically determined that a hearing is not required when the information before the court enables it to undertake a comprehensive independent review in a custody or visitation issue. (See also, Matter of Lynda D. v. Stacy C. (37 AD3d 1151 [4th Dept, 2007]).

The father's argument is based solely on information he claims to have received from the children's uncle. He alleges: (a) David C. informed the father the children want to visit and to have written and telephonic contact; (b) David C. informed the father that the children assent to the visits; (c) David C. informed the father that the children understand the nature and ramifications of the father's incarceration; (d) David C. informed the father that the children are bonded and stabilized with the C.'s; and (e) David C. informed the father that he would bring Thomas Z. K. 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 [*5](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.

Significantly, the law guardian chose not to speak to the children a third time to see if they consent. He indicates he had spoken to them twice, and it was his position that they do not want contact. While the father's attorney argues that he should have spoken with them anew, this is not necessarily so. Otherwise, a parent convicted of murder could simply repeatedly file for modification claiming the children now consent and the children would have to discuss the situation with their attorney over and over again—a reality which would clearly not be in their best interests. The children were only 7 and 8 at the time of the motions and petitions and are currently 8 and 9. It cannot be disputed that they are young children. To repeatedly ask them about their desires to visit their father would be to repeatedly put them in the middle of a horrible situation.

In analyzing this case, it is useful to review Matter of Scott JJ, 280 AD2d 4 [3d Dept, 2001]), in which, after a hearing, an 8-year-old child was found too young to assent to visitation with the father who murdered his mother. The court wrote about the new statute,This law undoubtedly reflects a legislative determination that the very act of murder in the first or second degree of a child's parent is so extreme that a presumption arises, albeit rebuttable, that neither custody nor visitation is appropriate or in that child's best interest. Prior to its enactment, and currently as to all other crimes, the general rule concerning parents convicted of a crime is that incarceration alone does not render custody or visitation inappropriate (see, e.g., Matter of Rowgoski v Rogowski, 251 AD2d 827; Matter of Hadsell v Hadsell, 249 AD2d 853, lv denied 92 NY2d 809; Matter of Mohammed v Courtland County Dept of Social Serve., 186 AD2d 908, lv denied 81 NY2d 706). (Emphasis added.)

. . . . In any event, and more importantly, there was certainly no evidence offered that [the child] was of suitable age to signify assent to visitation.

This court agrees with the above-statement of the legislative intent behind this legislation.

In the case at bar the respondents submitted a letter from the children's psychologist, specifically responding to the father's petition for visitation, stating she had seen them biweekly to monthly since November 29, 2005, and further stating in part,

I do not believe that they currently possess the requisite cognitive abilities and emotional maturity to decide whether they would want to visit with their biological father. Currently, the lack the emotional and intellectual sophistication necessary to consider and process the complex mix of emotions such visitation would surely bring up for them. As such, I do not believe visiting [*6]with their biological father is in their best interest at the current time...Visitation at the current time will likely arouse complicated emotional reactions for the children and as a result, will negatively impact their functioning at home and at school. I believe that visitation should be reserved for a later state of their lives when they are emotionally and cognitively better equipped to decide to and cope with visiting their father.

In contrast, here there is simply no evidence even suggested by the father in this matter that the children are of suitable age and discretion to consent to visitation with him as the murderer of their mother. The father has the burden of offering some evidence to justify a hearing on whether or not the children are of suitable age to assent to visitation with him. He has not done so. Accordingly, this court finds, based on their attorneys' recommendation, their psychologist's stated position, the case law, and common sense that the children are simply not of suitable age and discretion to consent.

Finally, the father's allegations do not offer any specific facts suggesting that it is in the best interests of the children to have contact with him.

In short, this court agrees with counsel for the aunt and uncle, as well as the children's attorney. There has been no change of circumstances alleged with any credible shred of evidence. The statutory exceptions have not been alleged in any manner requiring a hearing. Thus, the best interests test need not even be reached and an evidentiary hearing need not be held. The petition for modification filed by the father on October 19, 2009 requesting visitation, as well as his violation petition regarding written and telephonic contact, will be dismissed.

NOW THEREFORE, it is

ORDERED, that the cross-petitions/motions filed by the Respondents David and Christine C., 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 (V09914/15-05/09B) by the Petitioner Thomas K., is dismissed with prejudice; and it is furtherORDERED, that the petition for modification of the prior order of Custody filed on October 19, 2009 (V09914/15-05/09A) by the Petitioner Thomas K., is dismissed with prejudice.

Dated: September 30, 2010ENTER

_________________________________

HON. PATRICIA E. GALLAHER,

MONROE COUNTY FAMILY COURT JUDGE Footnotes

Footnote 1: Similar is the amendment to the Family Court Act, set forth in section 1085 thereof, prohibiting visitation and custody to parents who murder the other parent or siblings of children in foster care, subject to the same conditions.