Domestic Relations – Parent & Child – Visitation – Prison Facilities – Attempted Statutory Rape of Mother

Bobbitt v. Eizenga (Lawyers Weekly No. 12-16-1033, 8 pp.) (Robert N. Hunter Jr., J.) Appealed from Davie County District Court (Mary F. Covington, J.) N.C. App. Unpub.

Holding: Where the trial court’s findings of fact indicated that the prison in which the plaintiff-father is incarcerated has appropriate facilities for child visitation, the findings do not support the court’s conclusion that prisons are not suitable environments for minor children to visit.

We vacate the trial court’s order denying the father visitation and remand for further findings.

The trial court found, “9. The Plaintiff presented uncontroverted evidence, and the court finds as fact, that there is a room in the facility in which he is incarcerated dedicated for the exclusive purpose of allowing inmates to exercise visitation with their minor children in an environment suitable for minor children.

“10. The Plaintiff is often visited by his family who bring his two nieces whom are of similar age to Plaintiff’s minor child to visit the Plaintiff.”

These findings suggest only that the facility of incarceration has acknowledged the risk of allowing children to visit such institutions and has made specific accommodations to remedy the problem. Accordingly, there was no finding of fact on which the trial court could have based its conclusion of law that “it is not in the best interest of [the minor child] that visitation be exercised in the facility in which Plaintiff is incarcerated” because “facilities of incarceration, even though a visitation room is provided, are not suitable environments for minor children….”

We do not reach the question of whether it is ever in the best interests of the child to allow prison visitation.

In this case, the fact that the parent who is seeking visitation is the attempted statutory rapist of the child’s mother is one factor the court should consider along with other contextual factors. As written, the trial court’s findings of fact do not support its conclusion that visitation would be inappropriate.

In the absence of specific findings supporting the trial court’s conclusions, the order is incomplete. We cannot not hold as a matter of law any visitation with a parent who is incarcerated is per se inappropriate, but rather that the extent to which such visitation is appropriate must be conditioned on factors not addressed by the trial court, including, but not limited to, the age of the child, the relationship of the child’s parents, developmental issues, and the nature of the visitation facilities.

Vacated and remanded.