• Aleksander K. v. Elena K.
    • 2004 NY Slip Op 50156U (Richmond Co. Family Ct. 2004).

      When the children’s mother killed the father and was convicted of the murder, and the children’s uncle received custody of them in Florida, it was not in the best interests of the children to have continued visitation with their mother in New York. The mother had effectively orphaned the children, since she deprived them of their father and their mother due to her subsequent incarceration.

  • Allen v. Allen
    • This Court found that a criminal domestic violence conviction is prima facie proof of the “cruel and inhuman treatment” ground for divorce.
  • Benjamin v. Benjamin
    • 851 N.Y.S.2d 305 (3rd Dept. 2008). Conviction of rape in the third degree of a then 16 year old neighbor was one of several factors in denying defendant a modification of custody order pertaining to the children of his marriage.
  • Bougor v. Murray
    • 283 A.D.2d 695 (3rd Dept 2001). Courts may consider a parent’s lengthy incarceration when deciding whether visitation is in the best interests of the child. Limitation of contact to 4 letters a year was proper when the incarcerated father had beaten the mother while pregnant with the child, and had hit the child during one of three jailhouse visitation attempts.
  • Ceasar A. R. v. Raquel D.
    • 179 A.D.2d 574 (1st Dept 1992). Denial of visitation with an incarcerated father is appropriate when the Court finds that the children fear the father and do not want to visit him, because he was imprisoned for murdering the children’s mother and raping their sibling.
  • Ciulla v. McGee
    • 255 A.D.2d 580 (2nd Dept 1998). Incarceration is not a bar to visitation with a child. The court must hold a hearing, “to determine if there are any potentially deleterious effects of such visits on the child.”
  • Colby v. Crocitto
    • 207 A.D.2d 764 (2nd Dept 1994). The Second Department held that a previous conviction in criminal court has collateral estoppel effect and precludes any litigation on liability for the criminal conduct in civil actions.
  • Crowell v. Livziey
    • 20 AD3d 923 (4th Dept, 2005) 2005 NYSlipOp 05666, Appellate Division, Fourth Department
  • Dantzler v. McKane
    • 851 N.Y.S. 2d 308 (3rd Dept. 2008). As the court states: “While “the incarceration of a parent is not sufficient in and of itself to overcome the presumption favoring [] child[ren's] visitation with a noncustodial parent” (Matter of Bowers v Bowers, 266 AD2d 741, 742, 698 N.Y.S.2d 771 [1999]), “a denial of an application for visitation is proper where evidence demonstrates that visitation would not be in the child[ren's] best interest” (Matter of Ellett v Ellett, 265 AD2d 747, 747, 698 N.Y.S.2d 740 [1999]; accord Matter of Conklin v Hernandez, 41 AD3d 908, 910, 837 N.Y.S.2d 419 [2007]). Here, aside from brief chance encounters with the children in public, the father had no contact with them and thus no meaningful relationship for over two years preceding his incarceration, having never exercised his opportunity for supervised visitation (see Matter of Conklin v Hernandez, supra; Matter of Bougor v Murray, 283 AD2d 695, 695, 724 N.Y.S.2d 215 [2001]).”
  • Doe v. Pataki
    • 2006 WL 936711(SDNY 4/12/06). In 2004, NY and a group of convicted sex offenders entered into a stipulation by which qualifying sex offenders would be subject to the Sex Offender Registration Act (SORA) for only 10 years (SORA took effect in 1996, so many sex offenders’ registration requirements would expire in 2006). In 2006, the NY legislature amended SORA, intending it to apply to the class of offenders covered by the previous stipulation, and extending the registration period to 20 years for Level 1 offenders, and life registration for Level 2 offenders. The group of offenders brought action to enforce the stipulation. The Southern District of NY found that the stipulation created a contract which could not be unilaterally changed by the State. The Court stated that if it allowed the State to legislate its way out of this stipulation, “[t]he State could enter into a supposedly binding consent decree with fingers crossed behind its back, benefiting from the bargain while remaining confident in the knowledge that the legislature could later abrogate the commitment.”
  • Doe v. Pataki
    • Doe v. Pataki, 481 F.3d 69 (2nd Cir., 2007).
  • Doe v. T.T
    • Doe v. T.T., 2007 NY Slip Op 9985; 47 A.D.3d 283 (Third Dept. 2007). The Third Department upholds Family Court’s FCA article 10 derivative neglect findings of three children, and upholds an abuse finding against a fourth child who was sexually abused by Respondent-Father. The findings, both the direct and derivative, were based upon Respondent-Father’s criminal sexual abuse convictions as to the fourth child.
  • Edward S. v. William R. Moon, Commissioner of SS of Delaware Co.
    • 7 A.D.3d 834 (3rd Dept 2004). When a social worker and caseworker both testified that visitation with the incarcerated father would be harmful to the children, and there was no testimony otherwise, it was proper to deny visitation, and agency did not have an obligation to assist with visitation.
  • Ferrin v. New York State Dep’t of Correctional Services
    • 71 N.Y.2d 42 (1987). This case acknowledges that a person incarcerated for life may not marry during the incarceration, and may only marry upon granting of parole with the written permission of the parole board. This case also points out that with the amendment of NY Civil Rights Law § 79-a in 1981, the previous marriages of persons with life sentences were no longer automatically void, but only voidable at the option of the non-incarcerated spouse. As a result, after 1981, the non-incarcerated spouse must pursue legal action to terminate the marriage. For offenders who were married prior to a life imprisonment sentence and who were sentenced before 1981 – those marriages up until 1981 were either void by operation of law, or voidable by the non-incarcerated spouse.
  • Furman v. Barnes
    • 293 A.D. 2d 781 (2002). Long-term incarceration is NOT a substantial change of circumstances which would allow a downward modification of child support.
  • Grayes v. DiStasio
    • 166 A.D.2d 261 (1st Dept 1990). In this case, the First Department held that “[a] criminal conviction, whether by plea or after trial, is conclusive proof of its underlying facts in a subsequent civil action and collaterally estops a party from relitigating the issue.”
  • Gutkaiss v. Leahy
    • 285 A.D.2d 752 (3rd Dept 2001). When the incarcerated father was convicted of several counts of sexual abuse, was incarcerated for up to 64 years, refused to seek sex offender counseling, and had not seen the child in 5 years, denial of visitation was proper.
  • Hadsell v. Hadsell
    • 249 A.D.2d 853 (3rd Dept 1998). Incarceration alone is not enough to deny visitation. However, the evidence in this case showed that it would not be in the child’s best interest to have visitation with his father since his father had pled guilty to the attempted murder of the child’s mother. The father had also shown a complete disregard for the child’s welfare, as the child was in the same room as the mother when the father fired several shots at her.
  • Havell v. Islam
    • 751 N.Y.S.2d 449 (1st Dept 2002). When the husband brutally beat the wife with a barbell, the trial court properly found that the husband’s actions were egregious under N.Y. Dom. Rel. Law § 236(B)(5)(d)(13), and the husband received only 4.5% of a $13 million marital estate. This was not an abuse of discretion.
  • In re Adoption of Anonymous
    • 67 Misc.2d 366 (Queens Fam. Ct. 1971). Incarceration with an indeterminate period of imprisonment does not destroy a parent’s right to defend his status in a step-parent adoption proceeding.
  • In re Adoption of Jonee
    • 695 N.Y.S.2d 920 (Kings Family Court 1999). This Court found that a NY statute precluding people with certain felony convictions from adopting was unconstitutional because it created an irrebuttable presumption that people with felony convictions were unfit to adopt, thereby violating the due process clause. Family Court found that the adoption was in the best interests of the children, despite the adoptive mother’s homicide conviction.
  • In re Adoption of M.
    • 81 Misc.2d 282 (Nassau Fam. Ct. 1975). When a father’s criminal conviction has been reversed, adoption may not be ordered without his consent or some proof of abandonment.
  • In re Alison “VV”
    • 211 A.D.2d 988 (3rd Dept 1995). The Court found that the prospective adoptive mother’s convictions during her teenage years would not bar her from adopting when she had no legal trouble as an adult and was otherwise qualified.
  • In re Antia Siami D.
    • 192 A.D.2d 389 (1993). This case states that a parent’s incarceration does not excuse the person from contacting the children and/or the foster care agency, and thus cannot serve as a defense.
  • In re B.
    • 92 A.D.2d 917 (2d Dept 1983). DRL § 111(2)(d) allows for adoption without the consent of a parent if that person is serving a life sentence and therefore is deemed “civilly dead,” and his rights have not been restored. Due process does not prohibit termination of parental rights when the parent is incapable of or unwilling to care for the child and adoption is in the child’s best interests.
  • In re Christopher O.
    • 211 A.D.2d 980 (3d Dept 1995). Evidence of sexual abuse of the Respondent’s 3 daughters was not sufficient, in the absence of other evidence, to support a finding that he abused his sons, but it was sufficient to prove neglect.
  • In re Custody of Abdul Kaheem C.
    • 200 A.D.2d 356 (1994). The First Department found that although there had been sufficient evidence to terminate the Respondent’s parental rights, the Respondent was never produced from prison for the hearings, and thus the trial should never have proceeded. The Court held that in the absence of a parent’s waiver or “unusual circumstances,” the parent should be present at hearings to terminate parental rights.
  • In re Denise J.
    • 133 A.D.2d 687 (2d Dept 1987). A criminal conviction for sexual abuse is conclusive proof of sexual abuse in a Family Court child protective proceeding when the abuse arose out of same incidents.
  • In re Elizeo C.
    • 2007 NY Slip Op 52546U, (Fam. Ct. Kings Co., 2007). In this case, mother’s admission and conviction of endangering the welfare of a child in criminal court was not sufficient (per se) to prove neglect and derivative neglect in Family Court. The Court explained “An action that is likely to be injurious but which results in no injury is not necessarily one that causes an impairment or imminent danger of an impairment. In this regard, the requirements for the risk of injury standard set by the Family Court Act is higher than the one set by the Penal Law.”
  • In re Gregory B.
    • 74 N.Y.2d 77 (1989). In this case, the Court of Appeals held that the lengthy incarceration of both parents did not exempt them from the planning requirements set forth in Social Services Law § 384-(b)(7). The parents could not rely upon others to plan for them. Hence, termination of parental rights based upon permanent neglect grounds affirmed.
  • In re Jamie M.
    • 14 Neb. App. 763 (Neb. Ct. App. 5/16/06). In the state of Nebraska, convictions that are currently on appeal are not final and therefore may not be used to fulfill the statutory requirements to terminate parental rights. However, when appeals have been decided, then the conviction may be used as grounds to terminate.
  • In re Jimmy A.
    • 218 A.D.2d 734 (2d Dept 1995). When a court finds that a father sexually abused one child, it gives rise to summary judgment on the issue of neglect of a second child.
  • In re Justice T.
    • 758 N.Y.S.2d 732 (4th Dept 2003). In this case, a mother was convicted of murdering her daughter and then gave birth to twins while she was on parole for the homicide and receiving psychiatric treatment. The mother failed to show that the conditions leading to the daughter’s death were not likely to currently exist or return in the foreseeable future, and thus the Family Court properly found derivative neglect of the twins.
  • In re Kathya V.
    • In re Kathya V., 2007 NY Slip Op 51676U; 16 Misc. 3d 1132A (Fam. Ct. Queens Cnty, 2007). In this 2007 Queens County Family Court case, the Court held that Respondent’s conviction of rape in the first degree against his two foster children sufficed as evidence of derivative child abuse as to his three biological children. Notably, in this case, the Court found that Respondent-Father’s infant child — born after the filing of the original FCA Article 10 petition against two older children — was also derivatively abused.
  • In re Keith “UU”
    • 256 A.D.2d 673 (3d Dept 1998). The Family Court found a father to be neglectful when the evidence showed that he knew of the mother’s sex abuse conviction and also her sexual abuse of four of her surrendered children, but did nothing to seek help for the mother.
  • In re Lambert
    • 119 Misc.2d 326 (Suffolk Fam. Ct 1983). A parent’s conviction for abuse that resulted in the death of the child’s sibling was unquestionable proof of abuse of the sibling and was sufficient to establish neglect of the subject child.
  • In re Marqekah B.
    • 2007 NY Slip Op 51361U; 16 Misc. 3d 1109A (Fam Ct Kings Cnty, 2007)
  • In re Omar Garry G.
    • 198 A.D.2d 149 (1993). The First Department found that even though father had made “diligent efforts” to keep in contact with his child, he did not have an adequate plan for the child; his only plan was to have the child remain in foster care while he remained in prison for at least seven more years. Termination of the parental rights affirmed.
  • In re O.
    • 95 Misc.2d 744 (Queens Fam. Ct. 1978). People v. Sandoval is inapplicable to Family Court Article 10 civil proceedings, and therefore CPLR 4513 allows in evidence of prior convictions to impeach on cross examination.
  • In re Peterson Children
    • 185 Misc.2d 351 (Kings Fam. Ct. 2000). A criminal conviction will collaterally estop parents from denying that children are neglected only when crime was committed against a child and elements of the crime expose a child to a risk of physical or emotional harm. Convictions for sexually abusing or assaulting a child or endangering a child’s welfare are the type of convictions that will allow summary judgment in a child protective proceeding. Possession of a controlled substance is not that type of crime, so summary judgment motion was denied.
  • In re Princess CC
    • 120 A.D.2d 917 (3d Dept 1986). Evidence of a criminal conviction for sexual abuse of a child is admissible in Family Court as conclusive proof of abuse of that child on collateral estoppel grounds.
  • In re Rasheda S.
    • 183 App Div 2d 770 (2d Dept 1992). Respondent father sexually abused his stepdaughter which led to a derivative neglect finding of his natural daughter who resided with him as well. The Court found that the “father’s conduct demonstrated a fundamental defect in his understanding of duties of parenthood, which placed his natural daughter in imminent danger of substantial risk of harm.”
  • In re Sarah L.
    • 207 A.D2d 1016 (4th Dept 1994). If Petitioner offers a certified copy of indictment and certificate of conviction of sexual abuse, and Respondent does not claim the lack of a full and fair opportunity to litigate the issue in the criminal proceedings, Family Court can enter judgment without a hearing on collateral estoppel grounds.
  • In re Scott “JJ”
    • 280 A.D.2d 4 (3rd Dept 2001). Denial of visitation is appropriate when the father left his small children –who were in his custody — alone while he went to murder the children’s mother.
  • In re Summer H.
    • 2006 WL 1452674 (Cal. Ct. App. 5/26/06). A California statute which bars anyone with a criminal record other than a traffic infraction (even relatives) from being certified as a foster parent, does not apply to applications for legal guardianship.
  • In re the Adoption of J.K.W.
    • In re the Adoption of J.K.W, 2007 Tenn. App. LEXIS 32 (Ct. App. Tenn., 2007)
  • In re Tamara H.
    • 228 A.D.2d 598 (2d Dept 1996). Father was criminally convicted for holding his child’s half-brother’s face in boiling water, and was found to have derivatively abused his own child as a result.
  • In re Vere C.
    • 181 Misc.2d 406 (Kings Fam. Ct. 1999). There is neglect as a matter of law when a father is convicted of murdering his children’s mother, even if the murder did not happen in the children’s presence, because the father deprived the children of a mother, ruined their family, and harmed the children emotionally.
  • In the Matter of Kerry J.
    • 288 A.D.2d 221 (2nd Dept., 2001). This case holds that an incarcerated father’s three telephone calls and periodic gifts or letters over a period of 18 months were contacts “so sporadic and insubstantial as to be insufficient to defeat the court’s finding of abandonment.”
  • In the Matter of Annette B.
    • 2005 N.Y. LEXIS 1061 (Ct. App. 2005). Here, the evidence showed that incarcerated father had abandoned his child, even though he claimed that his lack of contact was due to his inability to locate child. The Ct. found that his efforts to locate the child were very limited, and even after he knew child’s location through the TPR petition, he made no effort to contact child. Interestingly, even though this was post-petition behavior, the Ct of Appeals relied upon it in this abandonment cause of action.
  • In the Matter of Cardozo v. Wlasiuk
    • 2005 NY Slip Op 8903. In this 2005 case, grandparents had custody of children; father was imprisoned for murdering the children’s mother. The grandparents had agreed that the children would not be permitted to visit the father in prison. When father challenged this stipulation, appellate court found that father had never sought visitation and that N.Y. Dom. Rel. Law § 240(1-c) may very well prohibit his visitation nonetheless.
  • In the Matter of Dominique M.
    • Slip Copy, 9 Misc.3d 1112 (A), 2005 Slip OP 51500 (U). This 2005 case outlines when incarceration of a parent may preclude or limit visitation with a child. When there is proof of a “compelling reason” or “substantial evidence that visitation would be detrimental to the child’s welfare” denial of visitation may be justified. See Thomas v. Thomas, 277 A.D.2d 935 (4th Dept, 2000). In this case, the father was responsible for the death of the child’s half-brother. The Court found that the father had been imprisoned during the life of the child, had not visited with her in more than a year, and had no relationship with the child. Visitation was denied.
  • In the Matter of Heather QQ
    • 234 A.D.2d 857 (3rd Dept., 1996). The Third Department stated: “We note that respondent’s incarceration… does not excuse his failure to maintain contact, nor was the agency obligated to make diligent efforts to encourage communication with it or the child.” The father in this case made no effort to contact the child during his incarceration, despite being advised by DSS to do so shortly after the father’s incarceration began. As a result, the father’s parental rights were terminated due to abandonment.
  • In the Matter of Hillsborough County CSE-FL obo Janet E v. Antonio B
    • On Tuesday 10-25-05, the New York Law Journal reported the case of Matter of Hillsborough County CSE-FL obo Janet E v Antonio B, finding, consistent with precedent, incarceration for murder was no defense from paying child support even if work release was not an option. Father’s unemployment is due to his own wrongdoing.
  • In the Matter of Latasha C.
    • 196 A.D.2d 756 (First Dept., 1993). The court stated: “A failure by a parent to either maintain contact or realistically plan for the child’s future will support a finding of permanent neglect…, and such planning responsibilities also apply to parents, such as respondent, who are incarcerated…” The Court further found that the Respondent’s plan for the child (to stay in foster care for the remainder of the Respondent’s incarceration) was not realistic, and so a finding of permanent neglect was proper.
  • In the Matter of Onondaga County Dept of Social Servs. v. Timothy S
    • 294 AD2d 27 (2002). Family Court Act section 413 (1)(g) – which allows for a cap on child support arrears if a parent is impoverished– does NOT apply when financial hardship is due solely to imprisonment based upon criminal conduct.
  • In the Matter of Ravon Paul H.
    • 161 A.D.2d 257 (1990). The First Department heldthat “sporadic and minimal attempts to maintain a parental relationship are insufficient to prevent a finding of abandonment.” The Court further found that the father’s imprisonment did not toll the period of abandonment. The father failed to write, telephone or maintain the relationship with his child during his incarceration. Termination affirmed.
  • In the Matter of Ronald D., Jr.
    • 282 A.D.2d 533 (1st Dept., 2001). This Court held that the father’s single contact with his son during the father’s incarceration was not adequate to defeat a termination of parental rights.. The Court further found that the existing order of protection did not prohibit the father from contacting the son by telephone or mail; hence, those methods of communication could have been utilized.
  • In the Matter of Ronald D., Jr.
    • 282 A.D.2d 533 (1st Dept., 2001). This Court held that the father’s single contact with his son during the father’s incarceration was not adequate to defeat a termination of parental rights. The Court further found that the existing order of protection did not prohibit the father from contacting the son by telephone or mail; hence, those methods of communication could have been utilized.
  • In the Matter of Shanaye C.
    • 2 Misc. 3d 887 (Kings Co. Family Ct. 2003). The court found that the father had abused the children, because the father had killed the children’s mother and the grandmother who attempted to protect the mother when the children were in the next room.
  • In the Matter of Tuwahn Crawford
    • 153 A.D.2d 108 (1990). When an incarceratedfather sent only one letter indicating an interest in his son (not sent to son himself), the Court found that the Legislature did not intend for “an isolated and belated suggestion of parental interest [to be] sufficient to outweigh a child’s right to a positive and nurturing family relationship, especially where, as here, the parent is essentially a stranger.”
  • John R. v. Marlene C.
    • 683 N.Y.S.2d 724 (Kings Co. Fam. Ct. 1998). This court held that the statute (N.Y. Dom. Rel. Law § 240(1-c)), which bars visitation with parents who have been convicted of the child’s other parent’s murder, should be applied retroactively to cases in which the parent was convicted of murder prior to the enactment of the law.
  • J.G. v. B.G.
    • 2005 NY Slip Op 51413U (Nassau Co. Fam. Ct. 2005). This court held that when making a decision regarding the best interests of the children involved, the court must take into account past domestic violence and the father’s criminal convictions. When the father hired a hit man to kill the mother and was convicted of that crime, he was not entitled to visitation with his children or a hearing, even when the children indicated an interest in having limited supervised visitation.
  • Knights v. Knights
    • 71 N.Y.2d 865 (1988). The Court of Appeals affirmed thatthe father was entitled neither to a downward modification of child support nor a suspension of the accrual of the arrears during his incarceration. His wrongful conduct resulting in a felony conviction and imprisonment should not serve to his benefit.
  • Marie Annette M. v. Maria M.
    • 2005 NY Slip Op 8034 (1st Dept 2005). Parents’ had criminal histories and history of drug abuse; child remained in foster care.
  • Matter of A.S.
    • 800 N.Y.S.2d 838 (Westchester Family Court 2005). Respondent mother beat the subject child’s sibling to death, was convicted of that murder and sentenced to 25 years to life imprisonment. Trial court found the subject child was abused, and the child was placed with DSS. DSS moved for relief from its obligation to seek reunification of the family, and the mother opposed based on her pending appeal. Family Court held that there is no “statutory exception for a pending appeal and further, it conflicted with the legislative intent of providing a child with a realistic permanency plan,” because appeals are lengthy endeavors.
  • Matter of Marino S.
    • 293 A.D.2d 223 (1st Dept 2002). The First Department held that the New York Adoption and Safe Families Act (ASFA) should be applied retroactively, as it is a remedial statute. Additionally, findings of derivative severe abuse can be made in termination of parental rights proceedings.
  • Matter of Suffolk County SS obo Michael V.
    • 83 N.Y.2d 178 (1994). Stepfather’s criminal conviction for sodomy against one child was utilized to support derivative neglect finding for a second child.
  • Matter of William S. and Xenia S.
    • 2006 NY Slip Op 50941U (Fam. Ct., Kings Co. 5/18/06). Parents pleaded guilty to reckless endangerment and acknowledged their failure to seek medical attention for their seriously abused child. The Family Court granted summary judgment on the issue of whether the parents’ second child was derivatively and severely abused, because the parents did not show that the conditions leading to the abuse of the first child had changed, and because their failure to seek medical attention for the child “demonstrate[d] such serious fundamental flaws in their understanding of the duties of parenthood as to place [the second child] at risk of being severely abused.”
  • McMillan v. Williams
    • 455 N.Y.S.2d 523 (N.Y. Co. 1982). A criminal conviction may be used as a basis for an award of summary judgment in a later civil action arising out of the same attack under CPLR 3212.
  • Morelli v. Tucker
    • Morelli v. Tucker, 851 N.Y.S.2d 696 (3rd Dept. 2008)
  • People v. Bania
    • 808 N.Y.S.2d 919 (2nd Dept. 2005). Courts have a statutory right to impose probation conditions, and defendants should expect courts to do so when pleading guilty in exchange for a term of probation. As long as the condition is “reasonably related to defendant’s rehabilitation, reasonably necessary to ensure that he will lead a law-abiding life, and necessary to prevent his future incarceration,” then the condition is proper, regardless of whether the defendant was advised of the proposed condition prior to pleading guilty.
  • People v. Cintron
  • People v. Kennedy
    • 2006 NY Slip Op 4342; 7 N.Y.3d 87 (2006)
  • People v. Kenneth Dorsey
    • 2006 NY Slip Op 2985 (1st Dept 4/20/06). A judge’s failure to warn a defendant of the SORA registration requirement does not make the defendant’s guilty plea to a sex offense involuntary.
  • People v. Koertge
    • 182 Misc. 2d 183, Nassau Co. Dist. Ct. 1998. Defendant challenged the constitutionality of NY CPL §§ 530.12 and 530.13, claiming that the failure to provide for an evidentiary hearing at his request prior to the issuance of a temporary order of protection denied him of due process. This Court found that the statutes were constitutional, and that Defendant did not have a due process right to an evidentiary hearing to contest the temporary order of protection that was issued.
  • People v. Shawn Kennedy
    • 2006 NY Slip Op 04342 (NY6/7/06). Court of Appeals reversed the Appellate Division, finding that the Sex Offender Registration Act — which requires registration for all felony sex offense convictions — does not apply to an indecent assault conviction under military law and may not affect any conviction under military law. The Court asked that the Legislature address the issue.
  • Rhoulac v. Umbarger
    • N.Y.L.J. 27 (col. 6) (11/29/2002). When a criminal court order of protection includes a provision requiring the father to stay away from both the mother and the child, the father must seek modification of that criminal court order before a petition for visitation can be properly reviewed. Allowing the incarcerated father to have jailhouse visitation, requiring the mother to bring the child to the prison, would vitiate the effectiveness of the order, because the mother would be forced to have contact with the father, or the child would be forced to visit the father in a prison facility without her non-incarcerated parent present.
  • Rogowski v. Rogowski
    • 251 A.D.2d 827 (3rd Dept 1998). Visitation with an incarcerated father is not in the best interests of the child when the father was imprisoned for raping his niece and had not received any counseling prior to filing the petition. However, the father could send the child cards on holidays and could file another petition if the circumstances changed.
  • Russo v. Russo
    • 282 AD2d 610 (1st Dept 2001). Visitation was properly denied without a hearing when the father repeatedly stabbed the mother while the children were nearby necessitating years of therapy for the children and victim.
  • Samson v. California
    • 04-9728. In this Supreme Court case, the main issue is whetherCalifornia violated Samson’s Fourth Amendment rights when it forced Samson to consent and submit to discretionary police searches during his parole term. Samson, a parolee, was searched by a police officer while walking on a street. The officer found drugs on Samson, arrested him, and Samson was later convicted at trial. On appeal, Samson claimed that the seized drugs were found during an illegal search, since the officer was required to have individualized suspicion that Samson was committing a crime, and therefore the search of his person was “arbitrary, capricious and harassing.” The Court of Appeals of California upheld Samson’s conviction and the statute. Samson was granted certiorari to argue his case to the United States Supreme Court, and oral arguments took place in February. An opinion should be issued shortly.
  • Scott C. v. Marietta C.
    • 156 Misc. 2d 336; 593 N.Y.S.2d 139; 1992 N.Y. Misc. LEXIS 597

      Ulster Co. Family Court (August 14, 1992). In this case, the court granted telephone visitation, but not physical visitation because sexual contact occurred in the prison’s visiting room – as it was a very small visiting room, the contact was in full view of any child visitors. Great language and overview: “Several courts have noted that this right [to visitation] is not forfeited by virtue of a parent’s incarceration… In Matter of Wise v. Del Toro (122 AD2d 714, supra), the Appellate Division has held that “[i]t cannot be said that the fact of a parent’s incarceration, standing alone, makes visitation of that parent’s child inappropriate.” (Supra, at 714-715.) The court in Wise took note of the fact that “visitation by children to incarcerated parents is frequent in this State and that the Department of Correctional Services makes provision for such visitation.” (Supra, at 714). “The right of visitation, however, is not absolute … It is qualified by the courts’ overriding concern for the welfare of the child.”

  • Simpson v. Finnigan
    • 202 A.D.2d 592 (2nd Dept 1994). A father’s incarceration does not alone justify denial of visitation. However, when a therapist offers testimony that visitation would harm the child, and when the child was disturbed by the offense the father was incarcerated for (kidnapping the mother at gunpoint), then denial of visitation is appropriate.
  • State ex rel. D.A.
    • 2006 WL 1319959 (N.J. Super. Ct. 2005). The NJ appeals court held that a family judge may place a special condition on a juvenile sex offender’s probation terms, requiring the juvenile to inform any future partner’s parents of his/her Megan’s Law status and of the outcome of the sex abuse case.
  • Taylor v. Frye
    • 849 N.Y.S.2d 724 (3rd Dept. 2008). Trial court considered prior convictions of domestic violence against one woman in an issue of visitation involving the children of another woman. Affirmed.
  • Teixeria v. Teixeria
    • 205 A.D.2d 545 (2ndDept 1994). Visitation with an incarcerated parent may be denied when there is substantial evidence that a child with Down’s Syndrome would not benefit from the visitation and may be detrimentally affected by the long trips to the prison.
  • Trombley v. Trombley
    • 301 A.D.2d 890 (3rd Dept 2001). Contact between the child and her incarcerated father is not in the child’s best interest when the child witnessed the father’s domestic abuse of the mother and other girlfriends and suffered from anxiety as a result. Furthermore, the child had no desire to have contact with her father.
  • Winn v. Baker
    • 2 A.D.3d 1169 (3rd Dept. 2003). Citing Knights v Knights that parent may not “benefit from his wrongful conduct to the detriment of his child”. Income for child support is imputed based on Respondent’s salary BEFORE arrest and imprisonment.