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B. G. v. A. M. O.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 4, 2008

IN RE B. G., PLAINTIFF-RESPONDENT,
v.
A. M. O., DEFENDANT-APPELLANT.

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 children either in person or by telephone, permitted defendant to write four letters a year to the children that were to be reviewed by the law guardian and plaintiff with no requirement that the children respond, and authorized that, upon each child attaining the age of 16, defendant may seek modification of the access schedule, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Friedman, Gonzalez, Buckley, Sweeny, JJ.

311144/05

The court's decision to deny defendant visitation at the present time, after hearing the testimony of the parties and the law guardian, observing defendant as a witness, and, after conducting a post-trial Lincoln hearing (see Matter of Lincoln v Lincoln, 24 NY2d 270, 272 [1969]) with defendant's eldest child in the presence of the law guardian, has a sound 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 and psychological harm, coupled with the fact that the children have been doing very well in their new home that were taken into account as relevant circumstances bearing on the best interests of the children. The court's primary concern was for the children's physical and psychological safety, as well as the safety of plaintiff, and there is nothing in the record to indicate that defendant has received anything other than "self-help" for the issues that compelled the attack on his wife and the continued harassment of his family from prison (see Gregory C. v Nyree S., 16 AD3d 142 [2005], lv denied 5 NY3d 702 [2005]).

The court providently exercised its discretion in denying defendant's application for a forensic evaluation (see James Joseph M. v Rosana R., 32 AD3d 725, 727 [2006], lv denied 7 NY3d 717 [2006]; Family Court Act § 251). The record establishes that the court had sufficient information upon which to make a comprehensive and independent review of the children's best interests, and defendant's behavior was a far greater indicator of his fitness as a parent than would be a forensic report. Furthermore, the law guardian found no need to make any application for a forensic examination, and the court conducted its own interview of defendant's son in the presence of the law guardian.

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081204

© 1992-2008 VersusLaw Inc.



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