IN RE: Michael JACOBS

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

IN RE: Michael JACOBS, Petitioner-Appellant, v. Kathleen CHADWICK, Respondent-Respondent.

Decided: November 13, 2009

PRESENT:  CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND GORSKI, JJ. Elizabeth A. Sammons, Williamson, for Petitioner-Appellant. Tyson Blue, Macedon, for Respondent-Respondent. Nancy M. Lord, Law Guardian, Lyons, for Michaela J.

Petitioner father appeals from an order denying his petition seeking visitation with the parties' daughter.   Contrary to the contention of the father, Family Court properly based its determination on the mental health evaluation of the child, concluding that forced visitation with the father, who is incarcerated, would be harmful to the child's emotional and psychological well-being and thus would not be in the best interests of the child (see Matter of Christina F.F. v. Stephen T.C., 48 A.D.3d 1112, 849 N.Y.S.2d 858, lv. denied 10 N.Y.3d 710, 859 N.Y.S.2d 395, 889 N.E.2d 82).   During the course of this proceeding, the father was incarcerated based upon his conviction of assault in the first degree, arising from his having attacked and beaten the child's older sister.   The record establishes that the father had engaged in a pattern of domestic violence in the presence of the child who is the subject of this appeal, that she suffered from posttraumatic stress disorder, and that she did not wish to visit the father (see Matter of Piwowar v. Glosek, 53 A.D.3d 1121, 862 N.Y.S.2d 672).

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

MEMORANDUM: