Matter of Rumpel v. PowellMatter of Rumpel v. Powell
Egan Jr., J. Appeal from an order of the Family Court of Broome County (Connerton, J.), entered January 30, 2014, which, among other things, granted petitioners’ application, in a proceeding pursuant to
In December 2012, respondent (hereinafter the father) and the child‘s mother, who were in the process of obtaining a divorce, entered into a stipulation awarding them joint legal custody of the subject child (born in 2007) with primary physical custody to the mother and specified periods of visitation to the father. Three months later, the mother and a male friend were found dead at the former marital residence—the apparent victims of a double homicide. Believing the father to be the prime suspect in those killings, petitioners, the child‘s maternal grandparents (hereinafter the grandparents), moved by order to show cause for custody of the child. Family Court awarded the grandparents temporary custody of the child, and a temporary no-contact order of protection was entered against the father.
To the extent that the father challenges the award of custody to the grandparents, we need note only that “no appeal lies from an order entered upon a party‘s consent” (Matter of Connor CC. [Jennifer DD.], 99 AD3d 1127, 1127 [2012]; see Matter of Connor S. [Joseph S.], 122 AD3d 1096, 1097 [2014]; Matter of DeFrancesco v Mushtare, 77 AD3d 1079, 1080 [2010]; Matter of Verry v Verry, 63 AD3d 1228, 1230 [2009], lv denied 13 NY3d 707 [2009]). Rather, where, as here, a party contends that such consent was coerced or otherwise invalid, the appropriate remedy is to move to vacate the underlying order (see Matter of Connor S. [Joseph S.], 122 AD3d at 1097; Matter of Connor CC. [Jennifer DD.], 99 AD3d at 1127; Matter of DeFrancesco v Mushtare, 77 AD3d at 1080). As nothing in the record suggests that the father moved to vacate the subject order, his challenge to the award of custody to the grandparents is not properly before us, and this portion of the appeal must be dismissed.
With regard to that portion of the father‘s appeal contesting the denial of his informal request for visitation, it is now moot. At the time of the underlying hearing, the father enjoyed two well-established presumptions: the presumption of innocence afforded to all criminal defendants and, more to the point, the presumption that—notwithstanding his incarceration—visitation with the subject child was in the child‘s best interests (see Matter of Kadio v Volino, 126 AD3d 1253, 1254 [2015]; Matter of Lapham v Senecal, 125 AD3d 1210, 1210 [2015]; Matter of Telfer v Pickard, 100 AD3d 1050, 1051 [2012]; Matter of Culver v Culver, 82 AD3d 1296, 1297 [2011], appeal dismissed 16 NY3d 884 [2011], lv denied 17 NY3d 710 [2011]). However, the attorney for the child advises this Court—and the father does not dispute—that, during the pendency of this appeal, the father was convicted of one count of murder in the first degree and two counts of murder in the second degree and was
In light of the foregoing, the legal landscape has now changed. Having been convicted of murdering the child‘s mother, the father no longer can rely upon, among other things, the presumption in favor of visitation. Rather, upon the father‘s conviction, a new presumption arose—one that “reflects a legislative determination that the very act of murder in the first or second degree of a child‘s parent is so extreme that . . . neither custody nor visitation [with the murdering parent] is appropriate or in that child‘s best interest” (Matter of Scott JJ., 280 AD2d 4, 9 [2001]). Although this presumption is rebuttable (see id.), no visitation may be awarded to the father—by Family Court or any other court—unless and until the father pleads and proves the specific elements of
Simply put, in light of the father‘s documented conviction and the fact that an award of visitation at this time is statutorily prohibited (see
McCarthy, J.P., Lynch and Clark, JJ., concur. Ordered that the appeal is dismissed, without costs.