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New York Prisoner Secures Court Order for Visitation with Child

The New York Court of Appeals upheld a lower court’s ruling that granted an incarcerated father visitation rights with his three-year-old child. The Court held the lower court had properly applied a legal standard that presumes in favor of visitation and considers whether that presumption is rebutted by evidence showing visits would be harmful to the child.

The petitioner, New York state prisoner Shawn G. Granger, acknowledged paternity of a child prior to his imprisonment. He sought an order under the Family Court Act allowing visitation after the mother refused to bring the child to see him in prison.

The family court noted that state law presumes a child’s best interest is served by visits with a non-custodial parent, and “the fact that such parent is incarcerated is not an automatic reason for blocking visitation.” The court found that Granger had been involved in the child’s life prior to incarceration and had acted to maintain the relationship after he went to prison. Further, the court determined the child would not be harmed by travel to the prison and thus ordered periodic four-hour visits. The Appellate Division affirmed.

The Court of Appeals rejected the mother’s argument that the family court had applied the wrong standard of law. It reaffirmed that “substantial proof” must be presented to overcome the presumption in favor of visitation, including when a parent is incarcerated. Visits should be denied to a non-custodial parent upon a showing they would be harmful to the child, which was not demonstrated in this case.

The Court declined to consider the impact of Granger’s subsequent transfer to a more distant facility, as that issue should have been the subject of a modification petition and not presented as an issue of first impression on appeal. The lower court’s order was affirmed. See: Matter of Granger v. Misercola, 21 N.Y.3d 86, 990 N.E.2d 110 (N.Y. 2013).

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