The opinion
Rosenblatt, J.,
concurs in part and dissents in part, and votes to reverse the order insofar as appealed from, and to remit the matter to the Family Court, Westchester County, for a new determination, with the following memorandum: I agree with the majority decision insofar as it reverses so much of the order as directs another physical examination of the child. My dissent relates to the psychological examination only.
At the time the court ordered the examination, Family Court Act § 1038 (c) was not in effect, and a Family Court Judge was empowered only to authorize a court-appointed expert to conduct the examination (Family Ct Act § 251). Six months after the entry of the order appealed from, the Legislature enacted Family Court Act § 1038 (c). Because it authorizes an examination in a more adversarial context, the statute contemplates the exercise of judicial discretion in weighing the benefits of examination as against any potential harm to the child.
The exercise of that discretion, I believe, calls for some individualized inquiry, although not necessarily a full-blown hearing. If this court is to now exercise its discretion in *547 applying and weighing the considerations set forth in a statute that did not exist at the time of the Family Court order, it must be based on more information than we have in this record. For that reason, I would remit the matter to the Family Court for exercise of its informed discretion, taking into account the criteria set forth in the statute.