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In re a Custody/Visitation Proceeding E.A.

Family Court, Bronx County

June 21, 2017

In the Matter of a Custody/Visitation Proceeding: E.A., Petitioner,
R.A., Respondent.

          Petitioner/Father - Robert Francis Himmelman, Esq. [1]

          Respondent/Mother - Enrique Benitez, Esq.

          Child - Elizabeth Susan Wilder, Esq.

          DAKOTA D. RAMSEUR, J.

         Petitioner/Father E.A., an inmate at Eastern State Correctional Facility (the "prison"), commenced this proceeding against Respondent/Mother R.A. for visitation of their son, the subject child, a seven-year-old with autism. Petitioner argues, in sum and substance, that his incarceration alone does not rebut the traditional presumption that visitation is in the child's best interests. After a trial held on July 6, 2016, September 22, 2016, and December 12, 2016, [2] this Court holds that, at this juncture, Respondent has successfully rebutted the presumption of visitation and denies the Petition.


         A. Petitioner's Testimony

         Petitioner and Respondent lived together in a studio/one-bedroom apartment in the Bronx in September of 2008 when the child was born. Petitioner and Respondent stayed together for approximately three months thereafter, at which time Petitioner moved in with his mother. Though Petitioner initially maintained contact with his son, including visitation on weekends, their relationship "started fading" (Tr1 7:9-18).

         Petitioner filed two prior custody petitions on March 11, 2009 and March 23, 2010 (Tr111:3-7). Though both were dismissed without prejudice (id.), Petitioner testified that they prompted Respondent to allow visitation on Sundays, Petitioner's day off (Tr112:15-15:3). On those visits, Petitioner would pick up the subject child, then three years old, at Respondent's home, then drop him off at Respondent's mother's home (id.). These visits continued until approximately one week before Petitioner's incarceration in June of 2011, which stems from his murder of the three-year-old child of an ex-girlfriend (Tr1 7:24-8:13; 33:18-24).

         Petitioner has not seen the subject child, now seven years old, since his incarceration (Tr1 35:8-16; 44:16-47:12), despite the availability of visitation programs on weekends (Tr1 20:1-21:23; 29:20-32:3), a dedicated visitation area, and outdoor facilities in summer (Tr1 25:1-25). Asked to elaborate upon the visitation area, Petitioner described an area measuring approximately thirty feet by thirty feet with a linoleum floor, metal doors, and several tables supervised by correctional officers (Tr1 54:2-60-1). Petitioner did not know whether visitors would be strip searched, and was unable to provide details about the children's area (id.). Petitioner has not yet completed any parenting skills or anger management classes, but has joined the waiting list for both (Tr1 28:1-29:10).

         On cross-examination by Respondent, Petitioner admitted that since his incarceration, he has not attempted to contact Respondent or the subject child, either directly or through an intermediary (Tr1 35:23-37:5). Petitioner only learned of the subject child's autism diagnosis and associated difficulty with strangers, long car-rides, and loud noises after commencement of this action (Tr1 37:22-24; Tr1 37:25-39:12).

         On cross-examination by the Attorney for the Child ("AFC"), Petitioner disputed - despite his conviction and a fact-finding order to the contrary (Pet'r Exh 4) - the facts underlying his conviction for murder and the related finding of abuse: specifically, that Petitioner repeatedly struck and ultimately killed his then girlfriend's three year-old daughter, in front of her younger brother, because she was not eating her food or listening to Petitioner, who then failed to seek medical attention for her (Tr1 40:7-44:15). Petitioner conceded that while he has not seen the subject child since his incarceration, he had seen the victim's mother, who called "virtually every day, " several dozen times (Tr1 47:16-48:7). Asked why he did not file his custody petition until 2014, Petitioner responded that he was waiting for the resolution of his criminal case, because he did not know how far away he would eventually be incarcerated, if at all (Tr1 26:1-23).

         Petitioner believes visitation to be in the subject child's best interest because visitation would allow the child to know and understand Petitioner (Tr1 32:18-22). Petitioner testified that visitation would be appropriate, and could be effectuated with the assistance of his mother and two brothers, who visit monthly and could provide transportation for the subject child (Tr1 20:15-18; 22:15-18).

         B. Paternal Grandmother ...

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