McCULLOUGH v. BROWN

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Robert McCULLOUGH, Petitioner-Appellant, v. Barbara BROWN, Respondent-Respondent.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, KEHOE, MARTOCHE, AND LAWTON, JJ. Raja N. Sekharan, Rochester, for Petitioner-Appellant. Edward J. Nowak, Public Defender, Rochester (Yolanda Villa of Counsel), for Respondent-Respondent. Ardeth L. Houde, Law Guardian, Rochester, for Robert M., Jr. and Radezia M.

 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 A.D.2d 994, 744 N.Y.S.2d 609;  Matter of Mills v. Sweeting, 278 A.D.2d 943, 943-944, 718 N.Y.S.2d 558;  Matter of Thomas v. Thomas, 277 A.D.2d 935, 715 N.Y.S.2d 818).

 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 A.D.2d 1252, 1253, 765 N.Y.S.2d 548;  see also Matter of Bougor v. Murray, 283 A.D.2d 695, 696, 724 N.Y.S.2d 215).

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

MEMORANDUM: