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New York Court Rules Mother Not Required to Bring Child to Prison to Visit Incarcerated Father

by Lonnie Burton

On October 20, 2016, a New York state appeals court upheld a ruling by a judge of the Family Court of Warren County denying a petition by an incarcerated father which sought to require the unmarried mother of his son to bring the child to prison for visitation.

Temer Leary was imprisoned in several New York prisons between 2005 and 2010, and the mother of his then-newborn child would periodically bring the child in to the prisons for visits with Leary. Leary was released in 2011 and lived with the child and his mother until Leary was returned to prison for unknown reasons in early 2013. When the mother, Camille Mae McGowan, refused to resume prison visits with the now 8-year­old child, Leary filed a petition in family court seeking to compel McGowan to let him visit his son. McGowan then filed a petition of her own seeking full physical and legal custody of the boy. McGowan said that Leary was an unfit father with severe anger issues, and further alleged that he committed acts constituting stalking in the fourth degree.

As part of her petition, McGowan asked the court for a two-year protective (or "stay-away") order against Leary. The family court granted the mother's petition, her stay-away order, as well as an order prohibiting Leary from writing to his son. In addition, Leary's petition was denied, and he appealed all of these rulings.

A five-judge panel of the New York Court of Appeals unanimously affirmed. The court held that while visitation with an incarcerated parent is presumed to be in the best interests of the child, that presumption may be overcome upon a showing "that visitation would be harmful to the child's welfare."

In support of its conclusion that visits with Leary would not be in the child's best interests, the appellate court noted Leary's severe anger issues, citing letters he wrote to the mother threatening to stab her and light her on fire, as well as incidents where Leary trashed hotel rooms and smashed household items in the presence of the child.

"Upon reviewing the record as a whole, and taking into consideration the father's documented hatred of the mother" and Leary's "failure to establish that he has addressed and successfully resolved his anger issues, we cannot say that the Family Court abused its considerable discretion in denying the father's request for prison visits," the court wrote.

The court concluded that all of Leary's remaining arguments were "lacking in merit" and declined to address them. See: Leary v. McGowan, 2016 NY Slip Op 06922 (n.Y. Ct. App.), October 20, 2016.

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Related legal case

Leary v. McGowan