| Matter of David V. v Rosalind W. |
| 2009 NY Slip Op 03740 [62 AD3d 717] |
| May 5, 2009 |
| Appellate Division, Second Department |
| In the Matter of David V., Appellant, v Rosalind W.,Respondent. |
—[*1] Robert Gruenspecht, Jamaica, N.Y., for respondent. Daniel E. Lubetsky, Jamaica, N.Y., attorney for the children.
In a visitation proceeding pursuant to Family Court Act article 6, the father appeals from anorder of the Family Court, Queens County (Seiden, Ct. Atty. Ref.), dated May 21, 2008, which,upon a decision of the same court dated April 24, 2008, after a hearing, denied his petition forvisitation with the subject children.
Ordered that on the Court's own motion, the notice of appeal from the decision is deemed anotice of appeal from the order dated May 21, 2008 (see CPLR 5512 [a]); and it isfurther,
Ordered that the order is affirmed, without costs or disbursements.
The determination of whether to award visitation to a noncustodial parent lies within thesound discretion of the hearing court, and must be based upon the best interests of the child (see Matter of Herrera v O'Neill, 20AD3d 422, 423 [2005]; Matter ofThomas v Thomas, 35 AD3d 868, 869 [2006]). Although denial of a parent's right ofvisitation is a drastic remedy, visitation may be denied where there is evidence that visitationwould be detrimental to the welfare of the children (see Matter of Johnson v Williams, 59 AD3d 445 [2009];Matter of Cattell v Cattell, 254 AD2d 356 [1998]). A visitation determination should notbe set aside unless it lacks a sound and substantial basis in the record (see Matter of Thomasv Thomas, 35 [*2]AD3d at 869; Matter of Keylikhes v Kiejliches, 25AD3d 801 [2006]).
Contrary to the father's contention, there is a sound and substantial basis in the record toconclude that visitation would be detrimental to the welfare of the children. The record revealsthat a finding of neglect was entered against the father in March 1999 based upon allegations thathe sexually abused his now 11-year-old daughter when she was an infant, in the presence of histhen 6-year-old son. Although a dispositional order issued in November 2000 prohibited thefather from having visitation with either of the children until he engaged in sex-offender therapy,the father did not begin to regularly participate in any therapy program until several years later,and the program he entered did not focus on sex-offender treatment. Evidence also was presentedthat the father has limited impulse control and coping skills, leaving him vulnerable to acting-outbehaviors, and the psychologist who conducted a forensic evaluation of the family concludedthat visitation would be harmful to the emotional well-being of both children. The record alsodemonstrates that the father had almost no contact with his daughter since she was an infant, andthat his now 17-year-old son, who suffers from a serious psychiatric disorder, adamantly opposesvisitation. Under these circumstances, the Family Court properly denied the father's petition forvisitation (see Matter of Johnson vWilliams, 59 AD3d 445 [2009]; Matter of Sassower-Berlin v Berlin, 58 AD3d 635 [2009];Matter of Thomas v Thomas, 35 AD3d at 869; Matter of Razo v Leyva, 3 AD3d 571 [2004]; Matter of Cattellv Cattell, 254 AD2d 356 [1998]; see also Matter of Sharon E., 251 AD2d 663, 664[1998]). Miller, J.P., Angiolillo, Eng and Austin, JJ., concur.