Legal Criteria for Determining Visitation Rights of Incarcerated Father Clarified

The Court of Appeals, in a full-fledged opinion by Judge Pigott, held that there is a rebuttable presumption in favor of a child’s visitation with an incarcerated parent and that denial of such visitation must be supported by “substantial evidence.” In order to clarify the law in this area, the court explained:

A rebuttable presumption that a noncustodial parent will be granted visitation is an appropriate starting point in any initial determination regarding custody and/or visitation. Moreover, the rebuttable presumption in favor of visitation applies when the parent seeking visitation is incarcerated. A parent who is in prison does not forfeit his or her visitation rights by being incarcerated. “[P]etitioner’s incarceration, standing alone, does not make a visitation order inappropriate,” but a demonstration “that such visitation would be harmful to the child will justify denying such a request” …. In deciding whether the presumption is rebutted, the possibility that a visit to an incarcerated parent would be harmful to the child must be considered, together with other relevant facts. Visitation should be denied where it is demonstrated that under all the circumstances visitation would be harmful to the child’s welfare, or that the right to visitation has been forfeited. In speaking of the manner in which the presumption of visitation may be rebutted, the Appellate Division has frequently used the terms “substantial proof” and “substantial evidence.” “[T]he sweeping denial of the right of the father to visit or see the child is a drastic decision that should be based upon substantial evidence” … . This language is intended to convey to lower courts and practitioners that visitation will be denied only upon a demonstration “ that visitation would be harmful to the child “ that proceeds by means of sworn testimony or documentary evidence. Matter of Granger v Misercola, No 72, CtApp, 4-30-13