By Tom Precious
NEWS ALBANY BUREAU
ALBANY – In a precedent-setting case, the state’s highest court said parents do not forfeit their rights to see their children just because they are in prison.
Shawn Granger, who is serving an eight-year sentence for felony drug possession in Clinton Correctional Facility, sued the child’s mother, Danielle Misercola, after she refused to bring their son to visit him in prison.
The State Court of Appeals on Tuesday said a lower Family Court was correct in granting Granger visitation rights for four hours each month at the prison. Granger acknowledged paternity, was present at his son’s birth and said he visited the boy at least a half-dozen times before he was arrested on drug charges in 2009. Since then, he has telephoned the boy, who was born in 2008, and sent him gifts and cards.
The boy’s mother objected, in part, because she disputed Granger’s role in the boy’s life and that she did not want to drive him across the state to a prison that could have a negative impact on him.
A mid-level appeals court sided with the Family Court, saying the evidence showed Granger was not a stranger to the child and that he did try to maintain contact. The Family Court noted, the high court said, that state law presumes visitation with a non-custodial parent to be in the child’s best interest. The Court of Appeals agreed. A parent who is in prison does not forfeit his or her visitation rights by being incarcerated, the court decision stated. Lower courts were put on notice that visitation can be denied only if it would be harmful to the child.
Charles Greenberg, an Amherst lawyer who represented Granger at the appeal court levels, said the ruling Tuesday is important for clarifying that while there is not an automatic right of visitation for non-custodial parents in prison, there is now a presumption those visits can occur if there is no harm to the child.
“There was a perception that if you are in jail you are not entitled to child visitation any more. This decisions says the presumption is in favor of visitation,” Greenberg said.
The mother’s lawyer did not return calls for comment.
“No one is condoning selling drugs on the street, but it is certainly not harmful to the child to visit him in jail,’’ Greenberg said of his client, who lived in Watertown before his prison sentence.