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ALTHOUGH FATHER IS INCARCERATED FOR ASSAULTING MOTHER WHEN SHE WAS SEVEN MONTHS PREGNANT, FATHER IS ENTITLED TO A HEARING ON WHETHER VISITATION WITH THE CHILD, WHICH NEED NOT INCLUDE CONTACT VISITATION, IS IN THE BEST INTERESTS OF THE CHILD; IT IS THE MOTHER’S BURDEN TO DEMONSTRATE VISITATION WOULD BE HARMFUL (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the incarcerated father was entitled to a hearing on whether visitation would be in the best interests of the child. Father was convicted of assaulting mother when mother was seven months pregnant. Family Court had granted mother’s summary judgment motion precluding father’s contact until the child turns 18. The Third Department found that summary judgment in the absence of a hearing was inappropriate:

… [W]e agree with the father’s contention that a hearing was required regarding the issue of visitation. Plainly stated, we do not find that, given the specific circumstances of this case, denying the father any contact with the child until the child’s 18th birthday was appropriate on a summary judgment motion … . This is especially so given that “visitation . . . need not always include contact visitation at the prison” … . As such, the father is entitled to a hearing to determine what, if any, visitation is in the best interests of the child. By way of reminder, at this hearing, it is not the father’s burden to demonstrate that visitation is in the child’s best interests, but rather it is the mother, as the party opposing visitation, who has the burden of demonstrating, by a preponderance of the evidence, “that visitation with [the father] would, under all of the circumstances, be harmful to the child[‘s] welfare or contrary to [her] best interests” … . This includes a consideration of whether updates, photographs and/or letters may be appropriate and in the best interests of the child … . Matter of Jaime T. v Ryan U., 2025 NY Slip Op 02638, Third Dept 5-1-25

Practice Point: Once again it is Family Court’s failure to hold a hearing which results in reversal. Here the incarcerated father is entitled to a hearing on whether visitation, which need not include contact visitation, would be in the best interests of the child. At the hearing, it is mother’s burden to demonstration visitation would be harmful to the child.

 

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