Opinion
June 8, 1995
Appeal from the Supreme Court, Bronx County (Lorraine Backal, J.).
The record herein shows a history of physical abuse of the plaintiff by the defendant. There was also a strong showing of his manipulation of the children, including his coaching one of the girls to lie to the police about the source of a bruise (telling her to say her mother had hit her). There was also some evidence that defendant had struck the children.
Pursuant to Domestic Relations Law § 240, visitation with non-custodial parents is preferred and questions relating to custody and visitation must be made by determining the best interests of the children. While "[v]isitation is a joint right of the noncustodial parent and of the child", the first consideration is "the primacy of the child's welfare" ( Weiss v Weiss, 52 N.Y.2d 170, 175, 174). However, where as here, the non-custodial parent's "anger and hostility towards the [custodial parent] caused [him] to engage in conduct which was clearly detrimental to [his] children's welfare", including filing unfounded child abuse complaints, losing his temper against plaintiff and the children, and encouraging a child to lie to the police about the plaintiff, visitation "would be detrimental to the welfare of the children", and should, therefore, be suspended ( Jones v. Jones, 185 A.D.2d 228, 229-230). Besides these actions, defendant, herein, was actually physically abusive, demonstrated by testimony he broke plaintiff's nose and also hit the children. Moreover, defendant's refusal to submit to a forensic psychiatric examination, after requesting forensics, is another independent ground for denying visitation ( see, Melstein v. Melstein, 96 A.D.2d 884). We, therefore, suspend defendant's visitation pending completion of said examination and a subsequent hearing.
Concur — Ellerin, J.P., Asch, Nardelli and Williams, JJ.