McCullough v. Brown

21 A.D.3d 1349, 801 N.Y.S.2d 447

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 2005
• Status: Published

Opinion

Appeal from an order of the Family Court, Monroe County (Thomas W. Polito, R.), entered October 10, 2003 in a proceeding pursuant to Family Court Act article 6. The order granted petitioner visitation with his two children and delayed the visitation until three years from the date of the order on appeal herein.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Contrary to petitioner’s contention, Family Court properly determined that it was in the best interests of the children to delay the visitation of petitioner with his two children until three years from the date of the order on appeal herein, at which time the children will be, respectively, eight and nine years old. Petitioner is incarcerated, and the court noted that he has had no contact with his children for at least three years and that he “has no relationship with the children from their perspective.” We conclude that the court properly determined, following a hearing, that it was in the best interests of the children to delay visitation so that the children could continue to grow and develop before commencing visitation with their father (see generally Matter of Lonobile v Betkowski, 295 AD2d 994 [2002]; Matter of Mills v Sweeting, 278 AD2d 943, 943-944 [2000]; Matter of Thomas v Thomas, 277 AD2d 935 [2000]).

Also contrary to petitioner’s contention, the court did not err in rendering its decision without the benefit of psychological evidence. “[N] either the parties nor the Law Guardian requested any psychological examinations, and it cannot be said that the court should have sua sponte ordered the examinations where, as here, there otherwise was sufficient testimony from the parties for the court to resolve the [matter]” (Matter of Tracy v Tracy, 309 AD2d 1252, 1253 [2003]; see also Matter of Bougor v Murray, 283 AD2d 695, 696 [2001]). Present—Pigott, Jr., P.J., Green, Kehoe, Martoche and Lawton, JJ.