IN RE: Carlos LOZADA

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

IN RE: Carlos LOZADA, appellant, v. Frances LOZADA, respondent.

Decided: March 20, 2000

GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, DANIEL F. LUCIANO and NANCY E. SMITH, JJ. Yasmin Daley Duncan, Brooklyn, N.Y., for appellant. Kay Anixiadis, Flushing, N.Y., for respondent. Seymour Zager, Jericho, N.Y., Law Guardian for the children.

In a child custody proceeding pursuant to article 6 of the of the Family Court Act, the father appeals from three orders of the Family Court, Queens County (Friedman, J.), all dated December 4, 1997, which, inter alia, granted his petitions only to the extent of awarding him visitation with three of his children for a minimum of six days per year.

ORDERED that the orders are affirmed, without costs or disbursements.

The father has been incarcerated since 1977 on a conviction for murder in the second degree upon which a sentence of 25 years to life was imposed.   Over the years, the children participated in numerous weekend trailer visits with him at the prison, but those visits ceased in 1994 after the parties' divorce.   The mother testified that the father threatened the children that he would kill them and her if they did not visit him, wrote intimidating letters to them, and caused them to become distressed when he spoke to them by telephone.

 The Family Court's order directing visitation of six days per year, or more if proper arrangements could be made, is supported by the record.   Under the circumstances, such a determination was in the best interests of the children (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260).   The Family Court gave proper weight to the children's wishes which, although not controlling, must be considered, particularly where, as here, the children are of sufficient age to articulate their needs and preferences to the court (see, Matter of Kilstein v. MacDowell, 226 A.D.2d 727, 642 N.Y.S.2d 531;  Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113, 558 N.Y.S.2d 596).

MEMORANDUM BY THE COURT.

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