In the Matter of a Custody/Visitation Proceeding: E.A., Petitioner,
Petitioner/Father - Robert Francis Himmelman, Esq.
Respondent/Mother - Enrique Benitez, Esq.
- Elizabeth Susan Wilder, Esq.
D. RAMSEUR, J.
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,
this Court holds that, at this juncture, Respondent has
successfully rebutted the presumption of visitation and
denies the Petition.
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).
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).
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).
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
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).
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).
Paternal Grandmother ...