By: Andrew D. Taylor, Esq.
Imagine the horrific scenario where one parent shoots the other during a custody exchange, is convicted of attempted homicide and sentenced to prison. It is safe to assume that the incarcerated parent will not be seeing the kids, right? Wrong. To some, it may seem odd that an incarcerated parent might be entitled to visits with their minor children. In Pennsylvania, however, under certain circumstances, a court can require a child to visit his or her parent in prison. This concept was reaffirmed in the recent case of M.G. v. L.D.
In M.G., Mother and M.G., who were in a same-sex relationship, adopted each other’s children. Tragically, during a custody exchange in 2013, Mother shot M.G., who was in her car, several times in the presence of both children. M.G. escaped grievous injury, but spent a few days in the hospital. Mother was arrested, tried, and convicted of attempted homicide and endangering the welfare of children. She was sentenced to 22-52 years in prison.
Grandfather (Mother’s father) filed for custody of M.G.D. (Mother’s child) after the shooting. The court determined that Grandfather did not have standing to pursue custody, but did allow him to exercise partial custody, but set no real schedule. The court also appointed a child advocate (attorney representing the children) and prohibited anyone except the child advocate from discussing Mother’s criminal case with M.G.D.
Litigation continued as Grandfather filed petitions to modify custody. Mother also sought contact with the child. A trial was held and the focus was the grandfather’s interaction with M.G.D., the grandfather’s ongoing concern about M.G.D.’s welfare around E.G.D. (L.D.’s child) and Grandfather’s attempts to “pump” his granddaughter for information.
In the end, the trial court entered an order denying Grandfather’s request for partial physical custody and denying Mother’s request for weekly telephone contact. The judge allowed Mother only to mail her daughter one letter per week, subject to the child advocate’s approval. Mother and Grandfather appealed.
The Pennsylvania Superior Court reversed the trial court in a lengthy opinion for (among other reasons) failing to consider whether M.G.D. should see Mother in prison. The Superior Court stated that prison visit cases involve additional factors unique to that scenario that courts must consider in evaluating the overarching best interests of the child. For example courts mus consider: (1) the age of the child; (2) the distance and hardship to the child in traveling to the visitation site; (3) the type of supervision at the visit; (4) identification of the person(s) transporting the child and by what means; (5) the effect on the child both physically and emotionally; (6) whether the parent has and does exhibit a genuine interest in the child; and (7) whether reasonable contacts were maintained in the past; (8) the nature of the criminal conduct that culminated in the parent’s incarceration.
In M.G., the judge found that permitting phone calls or phone visits would be detrimental to the child because Mother continued to maintain that she was innocent of shooting M.G. However, in reaching this conclusion, the judge did not consider the eight factors above and was therefore reversed.
While the judge in M.G may not have technically analyzed all of the factors, it stands to reason the judge justifiably had concerns about the child visiting with Mother in jail. Given Mother’s conduct of maintaining her innocence, grandfather pumping the child for information, and the added stress of forcing the child to see her mother in jail, it makes little sense that there would be a scenario where this child’s best interest would be served by forcing contact between Mother and the child. If ever there was a case where contact between a parent and a child should be severely restricted, this one seems to be it.