Opinion
58 CAF 17-01823
03-22-2019
In the Matter of Andrew T. PAJEK, Petitioner–Appellant, v. Stephen FEKETI and Emily Katherine Ireland, Now Known as Emily Katherine Valcin, Respondents–Respondents.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CHELSEA L. PALMISANO OF COUNSEL), FOR PETITIONER–APPELLANT. STEPHEN FEKETI, RESPONDENT–RESPONDENT PRO SE. EMILY KATHERINE IRELAND, NOW KNOWN AS EMILY KATHERINE VALCIN, RESPONDENT–RESPONDENT PRO SE.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CHELSEA L. PALMISANO OF COUNSEL), FOR PETITIONER–APPELLANT.
STEPHEN FEKETI, RESPONDENT–RESPONDENT PRO SE.
EMILY KATHERINE IRELAND, NOW KNOWN AS EMILY KATHERINE VALCIN, RESPONDENT–RESPONDENT PRO SE.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner father appeals from an order granting the motion of respondents, the custodians of the subject children, for dismissal of the father's petition seeking visitation with the children. We reject the father's contention that Family Court erred in granting the motion without conducting a hearing (see Matter of Piwowar v. Glosek , 53 A.D.3d 1121, 1122, 862 N.Y.S.2d 672 [4th Dept. 2008] ; see generally Matter of Russo v. Russo , 282 A.D.2d 610, 610, 723 N.Y.S.2d 405 [2d Dept. 2001] ). The court is "not required to conduct an evidentiary hearing where ... it is clear from the record that the court ‘possesse[s] sufficient information to render an informed determination that [is] consistent with the child[ren's] best interests’ " ( Matter of Bogdan v. Bogdan , 291 A.D.2d 909, 909, 738 N.Y.S.2d 278 [4th Dept. 2002] ; see Matter of Lynda D. v. Stacy C. , 37 A.D.3d 1151, 1151, 830 N.Y.S.2d 881 [4th Dept. 2007] ; Matter of Oliver S. v. Chemung County Dept. of Social Servs. , 162 A.D.2d 820, 821–822, 557 N.Y.S.2d 729 [3d Dept. 1990] ). At the time the petition was filed, the father was incarcerated based upon his conviction of murder in the second degree for killing the mother of the subject children. Family Court Act § 1085 and Domestic Relations Law § 240(1–c) provide for "the rare but unthinkable scenario whereby one parent intentionally murders another yet seeks custody or visitation of the children left behind to deal with their double tragedy" ( Matter of Scott JJ. , 280 A.D.2d 4, 9, 720 N.Y.S.2d 616 [3d Dept. 2001] ; see Matter of Rumpel v. Powell , 129 A.D.3d 1344, 1346, 14 N.Y.S.3d 167 [3d Dept. 2015] ). Under those statutes, there is a presumption that neither custody nor visitation with the murdering parent is appropriate or in the children's best interests (see Rumpel , 129 A.D.3d at 1346, 14 N.Y.S.3d 167 ; Scott JJ. , 280 A.D.2d at 9, 720 N.Y.S.2d 616 ). Although the presumption is rebuttable, the statutes prevent a court from making an award of custody or visitation to the murdering parent except under certain narrow circumstances, in addition to which "the court must still make an additional finding that visitation or custody is in the child[ren's] best interest[s]" ( Scott JJ. , 280 A.D.2d at 9, 720 N.Y.S.2d 616 ; see Rumpel , 129 A.D.3d at 1346, 14 N.Y.S.3d 167 ). Inasmuch as the father failed to set forth allegations rebutting the presumption that visitation is not in the children's best interests, we conclude that the court properly dismissed the petition.
In light of the foregoing, we conclude that there is no merit to the father's further contention that the court abused its discretion in failing to appoint an attorney for the children to assess whether the children would assent to visitation (see gen erally Matter of Farnham v. Farnham , 252 A.D.2d 675, 677, 675 N.Y.S.2d 244 [3d Dept. 1998] ).