Friday, October 17, 2014

Can a Dead Man Get Visitation?


This week, the Appellate Division issued an interesting decision regarding whether a person who is alive, but considered “civilly dead” under Civil Rights Law § 79-a(1), can pursue a visitation acting in New York Family Court.  The Court found that the civil death statute did not apply to the prisoner because he was sentenced under federal law, not state law, and that the law did not have a provision dealing with a person serving a death sentence.

A brief history of the case is explained by the New York Post,

A Suffolk County judge declared the unrepentant gangbanger “civilly dead” last year and barred his attempts to see his infant son… Wilson has been fighting to see the boy he sired with since-fired prison guard Nancy Gonzalez after several trysts with her behind bars.


In examining the case, the Appellate Division found that

Contrary to the Family Court’s determination, the civil death provision of Civil Rights Law § 79-a(1) does not apply to the petitioner since he was sentenced to death in federal court, rather than state court (see Matter of Malik, 108 Misc 2d 774 [Fam Ct, NY County]; Winston v United States, 305 F2d 253, 255 n 2 [2d Cir], affd sub nom. United States v Muniz, 374 US 150; see also Hayashi v Lorenz, 42 Cal 2d 848, 271 2Pd 18). Moreover, although CivilRights Law § 79-a(1) declares civilly dead any person sentenced to imprisonment for life, it contains no provision pertaining to a person subject to a sentence of death, and it is not for the courts to expand terms beyond the plain language of statutes (see Jones v Bill, 10 NY3d 550, 555; Bright Homes vWright8 NY2d 157, 161; Tompkins v Hunter, 149 NY 117, 122-123).

Based upon these findings, the Appellate Division reinstated the petition and remitted the case to the Family Court to determine if a declaration of paternity would be in the best interests of the children.

The full Decision & Order can be found here.

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