Legislative Memo: In Relation to Custody and Visitation Rights of a Sex Offender

June 15, 2011 —  Subject: S. 2481 /Flanagan

(AN ACT to amend the corrections law, in relation to custody and visitation rights of a sex offender)

Position: Opposed

This legislation would bar a court from granting an individual who is required to register as a sex offender the physical or legal custody of – or unsupervised visitation with – a child. This blanket prohibition is both unconstitutional as a matter of law and contrary to the best interests of New York’s children. Thus, we strongly oppose its passage.

As a matter of law, a parent’s fundamental liberty interest in the care, custody, and management of his or her child may only be limited where the government provides a compelling interest and shows “an overriding necessity” in doing so. Alfonso v. Fernandez, 195 A.D.2d 46, 56 (2d Dep’t 1993). Further, because interference with custodial rights implicates fundamental liberties, laws regulating the state’s interference must be narrowly tailored to protect the state’s compelling interest.

While the government has a compelling interest in ensuring the protection of children, particularly where children need protection from their own parents, a blanket presumption that it is in the best interests of all New York’s children that parents who are registered sex offenders—including those with low-level offenses who have never targeted children— should be barred from having custody or unsupervised visitation is not narrowly tailored. 1

The mere fact that an individual is a registered sex offender does not mean that his continued presence in a child’s life is contrary to that child’s interests. As the New York Court of Appeals recently held, the mere fact that an individual is an untreated child sex offender does not mean that his actions “inflicted harm, or a substantial risk thereof” to his children, or that the children’s “physical, mental or emotional condition [was] in imminent danger of becoming impaired.” In re Afton C., 2011 WL 1671922 (2011). 2

This legislation is also misguided as a matter of policy as well. Studies have repeatedly shown that many sex offenders pose little to no risk of harm to children. For instance, a 2009 study demonstrated that fewer than 1 percent of men convicted of possession of child pornography had subsequently been investigated for or charged with a “hands-on” sexual offense. 3 Moreover, many crimes that trigger sex offender status do not involve children at all. 4 Indeed, the absolute prohibition on care and custody of one’s child would be applied in the same manner to the serial child rapist and to the teenager convicted of engaging in consensual sex with another teenager." 5

The current system of adjudicating custody and visitation rights already protects children from sex offenders who actually pose a threat. The “best interests of the child” standard, codified at Domestic Relations Law §240 and §70, instructs judges to use a totality of the circumstances approach in determining issues of custody and visitation. Under this approach, courts may consider past crimes as a factor to determine custodial and visitation rights. 6 For example, in making such a determination the DRL directs the courts to consider the effect of domestic violence and child abuse upon the best interests of the child, “together with such other facts and circumstances as the court deems relevant . . . [and to] state on the record how such findings, facts and circumstances factored into the direction.” 7

In addition, New York courts have upheld individualized probation conditions that prohibit child sex offenders from residing with minors without the permission of a Probation Officer – for example in People v. Hannah, 65 A.D.3d 1378, 1379 (2d Dep’t 2009), a ruling that comports with the State’s long-held policy barring courts from placing “a child in the custody of a parent who presents a substantial risk of harm to that child.” N.Y. DRL § 240(1). 8

This bill strips judges of their ability to make individualized determinations of fitness by asserting, categorically and without justification, that it is never in the best interest of the child to be in the custody of a sex offender regardless of the nature of the sex offender’s crime.

In other words, the absence of a blanket presumption has not resulted (nor will it result) in all sex offenders having custody of, or unsupervised visitation with, their children. It is not a rarity for the family court to find, with evidence particular to a given individual, that some sex offenders present a sufficient danger to their children that supervised visits are appropriate. By contrast, employing a presumption, as this bill proposes, will prevent courts from discerning the fitness of individual parents. And this will lead to the breaking up of families without justification, a result that contradicts express legislative intent. 9

This bill authorizes the state to circumvent its due process duties by stripping all registered sex offenders of custodial rights and unsupervised visitation for life without any individual determination of the child’s best interest. The bill is unconstitutional; it promotes public policy that is misguided and counterproductive.

For all of these reasons, the NYCLU strongly opposes this legislation, and urges the legislature to reject it.

1 In the past, the Legislature has specifically declined to make such sweeping presumptions. For instance, the Legislature rejected legislation that would have equated drug use with child neglect numerous times in recent legislative sessions. See e.g. A. 4424, 2007 Leg., 230th Sess. (N.Y.); A. 5103, 2005 Leg., 228th Sess. (N.Y.); A. 4839, 2003 Leg., 226th Sess. (N.Y.); S. 2040, 2007 Leg., 230th Sess. (N.Y.); S. 490, 2005 Leg., 228th Sess. (N.Y.); S. 1014, 2003 Leg., 226th Sess. (N.Y.).
2 See also Nicholson v. Scoppetta, 3 N.Y.3d 357 (2004) (New York City Administration for Children’s Services could not operate under a categorical presumption that the children of domestic violence survivors who were “exposed” to said violence were neglected).
3 Jerome Endrass et al., The Consumption of Internet Child Pornography and Violent Sex Offending, BMC Psychiatry (July 2009).
4 See N.Y. Department of Criminal Justice Services, “List of Registerable Offenses,” available at
5 See New York Correction Law § 168-a.
6 See, e.g. State Dept. of Children’s Services v. Hood, 2009 WL 5178413 (Tenn. 2009) (Under totality of circumstances, which included father’s sexual abuse of the children’s sibling, failure to participate in sex offender treatment, allowance of a known drug addict and alcoholic to live with the children, and failure to contact Department of Children’s Services about his children when he was out of jail on bond, termination of parental rights was in children’s best interests);
7 N.Y. DRL § 240(1) (emphasis added).
8 In addition to U.S. case law, the United Nations Convention on the Rights of the Child acknowledges that while children require special safeguards and care, including appropriate legal protection, a child also has the right to know and be cared for by his or her parents, and that the government must,

[E]nsure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

United Nations Convention on the Rights of the Child, Art. 9.1 (emphasis added), Nov. 20, 1989, 1577 U. N. T. S. 3.
9 In New York, the legislature has instructed State officials to seek to provide children with permanent homes in a manner that supports the preservation, rather than the severance, of natural familial bonds. N.Y. Soc. Serv. Law § 384-b.1(a) (statement of legislative findings and intent).