Matter of Frank P. v Judith S.

Matter of Frank P. v Judith S. 2006 NY Slip Op 08528 [34 AD3d 1324] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

In the Matter of Frank P., Appellant, v Judith S., Respondent.

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Appeal from an order of the Family Court, Livingston County (Ronald A. Cicoria, J.), entered September 15, 2005 in a proceeding pursuant to Family Court Act article 6. The order, inter alia, granted the cross petition and modified a visitation order.

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

Memorandum: Petitioner-respondent (petitioner) commenced this proceeding seeking to enforce a prior consent order calling for respondent-petitioner (respondent) to facilitate "occasional" prison visits between petitioner and the two children of petitioner and respondent. Respondent cross-petitioned for an order terminating or limiting such visitation. We conclude that Family Court properly denied the petition to enforce prison visits between petitioner and the children and properly granted the cross petition to modify the prior order by eliminating such visits. The court appropriately credited the testimony of the court-appointed psychologist that such visitation would be detrimental to the emotional and psychological welfare of the children and thus would not be in their best interests (see Matter of Medina v Kast, 298 AD2d 956 [2002]; Matter of Lonobile v Betkowski, 295 AD2d 994 [2002]; Matter of Reczko v Reczko, 278 AD2d 876 [2000]; Matter of Cook v Morales, 275 AD2d 938, 938-939 [2000]). The court's reliance on that opinion of the psychologist did not constitute an improper delegation of the court's authority to the psychologist (cf. Matter of Davenport v Ouweleen, 5 AD3d 1079, 1079-1080 [2004]; Ralph M. v Nancy M., 280 AD2d 995, 996 [2001]; Matter of Henrietta D. v Jack K., 272 AD2d 995 [2000]). Present—Kehoe, J.P., Martoche, Smith and Pine, JJ.