Opinion
1054 CAF 13-02130
11-14-2014
In the Matter of Thomas CARDWELL, Petitioner–Appellant, v. Jessica MIGHELLS, Respondent–Respondent.
Legal Assistance of Western New York, Inc., Olean (Jessica L. Anderson of Counsel), for Petitioner–Appellant. Mark S. Williams, Public Defender, Olean (Darryl R. Bloom of Counsel), for Respondent–Respondent. Bridget A. McCue–Marshall, Attorney for the Child, Randolph.
Legal Assistance of Western New York, Inc., Olean (Jessica L. Anderson of Counsel), for Petitioner–Appellant.
Mark S. Williams, Public Defender, Olean (Darryl R. Bloom of Counsel), for Respondent–Respondent.
Bridget A. McCue–Marshall, Attorney for the Child, Randolph.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:Petitioner father commenced this Family Court Act article 6 proceeding seeking visitation with the parties' two-year-old daughter. Following a trial, Family Court dismissed the petition without prejudice to reapply for visitation upon the fulfillment of certain conditions, including completion of another sex offender risk assessment. We affirm.
“[T]he propriety of visitation is generally left to the sound discretion of Family Court[,] whose findings are accorded deference by this Court and will remain undisturbed unless lacking a sound basis in the record” (Matter of Golda v. Radtke, 112 A.D.3d 1378, 1378, 977 N.Y.S.2d 843 [internal quotation marks omitted] ). Although we recognize the rebuttable presumption that visitation with the noncustodial parent is in the child's best interests (see Matter of Granger v. Misercola, 21 N.Y.3d 86, 90–91, 967 N.Y.S.2d 872, 990 N.E.2d 110 ; Matter of Cormier v. Clarke, 107 A.D.3d 1410, 1411, 968 N.Y.S.2d 753, lv. denied 21 N.Y.3d 865, 2013 WL 4790731 ), we also recognize the principle that the court “may deny visitation to parties that refuse to submit to examinations” (Matter of Rogers v. Fodor, 307 A.D.2d 395, 396, 762 N.Y.S.2d 667 ). Here, the record reflects that the father is a level one sex offender who was convicted of rape in the third degree for having sexual intercourse with the then-underage respondent mother and that the subject child is the product of the rape. At trial, the father admitted that he failed to complete the court-ordered sex offender risk assessment. We thus conclude that the court was authorized to deny visitation (see generally id. ). Additionally, the court's determination to deny the father visitation is supported by the father's failure to accept fault for the rape of the mother (see Matter of Amparo B.T. [Carlos B.E.], 118 A.D.3d 809, 811–812, 987 N.Y.S.2d 199 ; see also Matter of Enrique T. v. Annamarie M., 15 A.D.3d 310, 310–311, 790 N.Y.S.2d 109 ; Matter of Robbins v. Albany County Dept. of Social Servs., 179 A.D.2d 908, 908–909, 579 N.Y.S.2d 180 ). We thus see no basis to disturb the court's determination that visitation should be denied at this time.
Contrary to the father's further contention, the court did not abuse its discretion in ordering that he undergo another sex offender risk assessment before reapplying for visitation. “Family Court has the authority to order a sex-offender evaluation in order to determine [a party]'s proclivities toward such activity” (Matter of Selena L., 289 A.D.2d 35, 37, 734 N.Y.S.2d 123 ), particularly where, as here, “[t]he record establishes that ... the court had a well-reasoned basis for ordering” such an evaluation (Matter of Dylan L., 55 A.D.3d 1343, 1344, 864 N.Y.S.2d 636 ). Although the father claimed that a prior assessment conducted by his ongoing treatment provider should have been an acceptable substitute for the court-ordered assessment, the court found that his ongoing treatment provider was not impartial and thus that the father's alleged prior assessment conducted by that treatment provider was insufficient. Deferring to “the court's firsthand assessment of the character and credibility” of the witnesses (Matter of Thayer v. Thayer, 67 A.D.3d 1358, 1359, 888 N.Y.S.2d 693 ), we conclude that the court did not abuse its discretion in ordering the father to undergo another sex offender risk assessment with an objective evaluator and “ ‘not one chosen by a party to the proceeding’ ” (Matter of Armstrong v. Heilker, 47 A.D.3d 1104, 1106, 850 N.Y.S.2d 673 ; see Matter of Michelle A., 140 A.D.2d 604, 605, 528 N.Y.S.2d 652 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.