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One parent’s intentional murder of the other constitutes prima facie evidence of child neglect, and can, without proof of actual or prospective harm to the child, justify denial of visitation rights, a New York Appellate Division, 3rd Department, panel has ruled. The decision by the Albany panel in Matter of Scott “JJ,” 84936A/84936B, is the first appellate ruling to examine a 1998 law that, barring limited exceptions, requires judges to deny child visitation or custody rights to a person convicted of killing a parent. While neither the statute nor the court implies that there are now grounds for automatic termination of parental rights, the 3rd Department suggested that it is virtually self-evident that a father who killed the mother of his children is unfit for visitation. Last week’s ruling stemmed from an appeal by Vincent Zeh, who is serving a 20-year-to-life sentence for second-degree murder. Zeh was accused of leaving his two children, aged 6 years and 18 months, alone on the evening of April 11, 1997, while he went to a residence where his wife was babysitting for a relative. Prosecutors alleged that he stabbed his wife, Kim Zeh, 22 times, killing her. After Mr. Zeh’s arrest and pretrial confinement and prior to his conviction in Ulster County, the children lived with their maternal grandparents under a shared custody arrangement. Following Mr. Zeh’s conviction, the Ulster County Department of Social Services filed a neglect petition and the grandparents petitioned for sole custody. Family Court Judge Mary M. Work granted summary judgment, leading to this appeal. NO FURTHER PROOF As a threshold matter, the 3rd Department said Judge Work appropriately granted summary judgment in the neglect proceeding because the act of murdering the children’s mother was of such seriousness that further proof of harm or injury to the children was unnecessary. “Absent the extraordinary circumstance of domestic violence, we need neither the testimony of witnesses nor the reports of experts to establish that one parent’s intentional murder of the other constitutes prima facie evidence that the murdering parent had indeed neglected the children simply by committing that very heinous act,” Justice Anthony J. Carpinello wrote for the unanimous court. “Respondent’s conduct deprived his children of their mother by death and their father by incarceration; the emotional scars from these profound deprivations are manifest.” Carpinello added that Zeh, who maintains his innocence, failed to raise any issue of fact to rebut the prima facie showing “that his heartless conduct in murdering his children’s mother somehow did not impair their mental or emotional condition.” The custody and visitation petition gave the court its first opportunity to review legislation resulting from a Syracuse area case where a man who brutally murdered his wife sought a Family Court order compelling their children to visit him in prison. That matter sparked a public outcry, and on July 7, 1998, Gov. George Pataki signed “Lee-Anne’s Law,” which amended the Family Court Act and the Domestic Relations Law. CHILD’S BEST INTERESTS Under the amended law, courts are prohibited from ordering visitation or custody rights for a person who has murdered the parent, legal guardian or custodian of the child, unless: the child is old enough to assent, and does so; the legal custodian or guardian assents; the convicted parent can prove, by a preponderance of the evidence, that he or she was a victim of domestic violence and that the murder stemmed from that abuse. But even if the criteria are met, the 3rd Department said, in the final analysis the best interests of the child control. “This law undoubtedly 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 a presumption arises, albeit rebuttable, that neither custody nor visitation is appropriate or in the child’s best interest,” Justice Carpinello wrote. “Prior to its enactment, and currently as to all other crimes, the general rule concerning parents convicted of a crime is that incarceration alone does not render custody or visitation inappropriate.” Zeh complained that Family Court denied visitation without ascertaining whether his son was of age to assent and whether he assented. However, the 3rd Department said there is no evidence in the record that the boy wanted to visit his father or that he was of suitable age to make that decision. And even if the child does want to visit his father, “the wishes of a child do not always reflect his or her best interests,” the court said. Joining Carpinello were Presiding Justice Anthony V. Cardona and Justices Thomas E. Mercure, Edward O. Spain and Robert S. Rose. The case was argued by Denise Y. Dourdeville, an assistant public defender in Ulster County, for Mr. Zeh; law guardian John Ferrara of Ferrara & Sullivan in Monticello for the children; and Page Lockhart of the Ulster County Department of Social Services for the department. Ferrara said the decision comes as no surprise. “The statute and the court decision codify what I believe would be a common-sense rule, that people who murder are not deserving of visitation and custody, and more importantly, children who have had a parent murdered should not be subjected to custody or visitation with the murderer,” Ferrara said. Even with the 1998 amendments, there is still no statutory presumption of unfitness that would automatically result in a termination of parental rights. Consequently, a father who kills a mother, as in the current case, retains legal rights and can still make substantive decisions on adoption and other issues. Some observers have suggested that New York should again amend its laws to cover those exigencies.

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