| Matter of B.G. v A.M.O. |
| 2008 NY Slip Op 09483 [57 AD3d 246] |
| December 4, 2008 |
| Appellate Division, First Department |
| In the Matter of B.G., Respondent, v A.M.O.,Appellant. |
—[*1] Todd R. Parkin, New York, for respondent.
Order, Supreme Court, New York County (Laura E. Drager, J.), entered September 19, 2007,which, in this matrimonial action, denied defendant's application for visitation with his childreneither in person or by telephone, permitted defendant to write four letters a year to the childrenthat were to be reviewed by the law guardian and plaintiff with no requirement that the childrenrespond, and authorized that, upon each child attaining the age of 16, defendant may seekmodification of the access schedule, unanimously affirmed, without costs.
The court's decision to deny defendant visitation at the present time, after hearing thetestimony of the parties and the law guardian, observing defendant as a witness, and, afterconducting a post-trial Lincoln hearing (see Matter of Lincoln v Lincoln, 24NY2d 270, 272 [1969]) with defendant's eldest child in the presence of the law guardian, has asound and substantial basis in the record (see Ceasar A.R. v Raquel D., 179 AD2d 574[1992]). It was defendant's rape of plaintiff, and the continued threat of physical andpsychological harm, coupled with the fact that the children have been doing very well in theirnew home that were taken into account as relevant circumstances bearing on the best interests ofthe children. The court's primary concern was for the children's physical and psychologicalsafety, as well as the safety of plaintiff, and there is nothing in the record to indicate thatdefendant has received anything other than "self-help" for the issues that compelled the attack onhis wife and the continued harassment of his family from prison (see Gregory C. v Nyree S., 16 AD3d142 [2005], lv denied 5 NY3d 702 [2005]).
The court providently exercised its discretion in denying defendant's application for aforensic evaluation (see Matter of JamesJoseph M. v Rosana R., 32 AD3d 725, 727 [2006], lv denied 7 NY3d 717[2006]; Family Ct Act § 251). The record establishes that the court had sufficientinformation upon which to make a comprehensive and independent review of the children's bestinterests, and defendant's behavior was a far greater indicator of his fitness as a parent than wouldbe a forensic report. Furthermore, the law guardian found no need to make any application for aforensic examination, and the court conducted its own interview of defendant's son in thepresence of the law guardian.[*2]
We have considered defendant's remaining argumentsand find them unavailing. Concur—Mazzarelli, J.P., Friedman, Gonzalez, Buckley andSweeny, JJ.