DAVID v. ROSALIND

Ordered that on the Court's own motion, the notice of appeal from the decision is deemed a notice of appeal from the order dated May 21, 2008 ( see CPLR 5512 [a]); and it is further,

Ordered that the order is affirmed, without costs or disbursements.

The determination of whether to award visitation to a noncustodial parent lies within the sound discretion of the hearing court, and must be based upon the best interests of the child ( see Matter of Herrera v O'Neill, 20 AD3d 422, 423; Matter of Thomas v Thomas, 35 AD3d 868, 869). Although denial of a parent's right of visitation is a drastic remedy, visitation may be denied where there is evidence that visitation would be detrimental to the welfare of the children ( see Matter of Johnson v Williams, 59 AD3d 445; Matter of Cattell v Cattell, 254 AD2d 356). A visitation determination should not be set aside unless it lacks a sound and substantial basis in the record ( see Matter of Thomas v Thomas, 35 AD3d at 869; Matter of Keylikhes v Kiejliches, 25 AD3d 801).

Contrary to the father's contention, there is a sound and substantial basis in the record to conclude that visitation would be detrimental to the welfare of the children. The record reveals that a finding of neglect was entered against the father in March 1999 based upon allegations that he sexually abused his now 11-year-old daughter when she was an infant, in the presence of his then 6-year-old son. Although a dispositional order issued in November 2000 prohibited the father from having visitation with either of the children until he engaged in sex-offender therapy, the father did not begin to regularly participate in any therapy program until several years later, and the program he entered did not focus on sex-offender treatment. Evidence also was presented that the father has limited impulse control and coping skills, leaving him vulnerable to acting-out behaviors, and the psychologist who conducted a forensic evaluation of the family concluded that visitation would be harmful to the emotional well-being of both children. The record also demonstrates that the father had almost no contact with his daughter since she was an infant, and that his now 17-year-old son, who suffers from a serious psychiatric disorder, adamantly opposes visitation. Under these circumstances, the Family Court properly denied the father's petition for visitation ( see Matter of Johnson v Williams, 59 AD3d 445; Matter of Sassower-Berlin v Berlin, 58 AD3d 635; Matter of Thomas v Thomas, 35 AD3d at 869; Matter of Razo v Leyva, 3 AD3d 571; Matter of Cattell v Cattell, 254 AD2d 356; see also Matter of Sharon E., 251 AD2d 663, 664).