L.H. v. P.M., 21 N.Y.3d 88 (2013)

An incarcerated parent does not automatically forfeit their right to visitation; there is a rebuttable presumption that visitation is in the child’s best interest unless it is shown by a preponderance of the evidence that visitation would be harmful to the child.

Summary

This case addresses whether an incarcerated parent has a right to visitation with their child. The father, an inmate, sought visitation with his child after the mother refused to bring the child to the prison. The Family Court granted the father visitation, and the Appellate Division affirmed. The New York Court of Appeals affirmed, holding that incarceration alone does not make a visitation order inappropriate. Instead, there is a rebuttable presumption that visitation is in the child’s best interest, which can only be overcome by demonstrating that visitation would be harmful to the child. The court clarified that the standard for rebuttal is a preponderance of the evidence, not “substantial proof.”

Facts

The petitioner, an inmate in New York, acknowledged paternity of a child before his imprisonment.

The respondent mother refused to bring the child to the prison for visitation.

The father commenced a Family Court Act proceeding seeking visitation.

At the time of the hearing, the child was three years old.

Procedural History

Family Court granted the father’s petition, awarding periodic four-hour visits at the prison.

The Appellate Division affirmed, finding a sound and substantial basis in the record to support the Family Court’s determination.

The mother appealed to the New York Court of Appeals.

Issue(s)

Whether the lower courts employed the correct legal standard in reviewing the petition for visitation, specifically regarding the presumption in favor of visitation for non-custodial parents, including incarcerated parents.

Whether there was a sound and substantial basis in the testimony for finding that visitation was in the child’s best interests.

Whether the Appellate Division erred in failing to consider the impact of the father’s move from one prison to another.

Holding

Yes, because New York law presumes visitation with a non-custodial parent to be in the child’s best interest, and incarceration alone does not negate that presumption; it can only be rebutted by showing that visitation would be harmful to the child by a preponderance of the evidence.

Yes, because the factual findings underpinning the lower courts’ best interests determinations were supported by evidence in the record.

No, because the Appellate Division correctly ruled that the issue of the father’s move from one prison to another should have been brought to the attention of Family Court via a modification petition.

Court’s Reasoning

The Court of Appeals affirmed the lower courts’ rulings, emphasizing the presumption in favor of visitation for non-custodial parents, even when incarcerated. The court clarified that this presumption is not absolute and can be rebutted if visitation is shown to be harmful to the child. The court differentiated this case from Matter of Tropea v. Tropea, explaining that Tropea rejected mechanical analyses in relocation cases but did not eliminate the possibility of relying on presumptions. The court stated, “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.”

The Court rejected the argument that “substantial proof” is required to rebut the presumption, holding that a “preponderance of the evidence” is the correct standard.

The Court found support in the record for the lower courts’ findings that visitation was in the child’s best interest, noting that travel to and from the prison would not harm the child and that the father had attempted to maintain a relationship with the child. The court lacks the power to review affirmed findings of fact if supported by evidence.

Finally, the Court held that the father’s move to a different prison should be addressed through a modification petition in Family Court, not raised for the first time on appeal. “That issue should not have been raised in the first instance for determination by an appellate court.”