Opinion
1243 CAF 16–02236
12-21-2018
In the Matter of Jennifer RICE, Petitioner–Respondent–Respondent, v. Michael WIGHTMAN, Respondent–Petitioner–Appellant.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–PETITIONER–APPELLANT. M. KATHLEEN CURRAN, CANANDAIGUA, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–PETITIONER–APPELLANT.
M. KATHLEEN CURRAN, CANANDAIGUA, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the sixth, seventh, and eighth ordering paragraphs, and as modified the order is affirmed without costs and the matter is remitted to Family Court, Ontario County, for further proceedings in accordance with the following memorandum: In this Family Court Act article 6 proceeding, respondent-petitioner father appeals from an order that, inter alia, modified a prior custody and visitation order by awarding petitioner-respondent mother sole legal and residential custody of the subject child and limiting the father's visitation with the child to family therapy sessions. The father contends that Family Court abused its discretion in denying his motion to change venue from Ontario County to Seneca County. We reject that contention. At the time the mother commenced this proceeding in Ontario County, the father resided in that jurisdiction, and the prior order that the mother sought to modify was entered in Ontario County. Thus, venue was proper in Ontario County (see Family Ct. Act § 171 ), and the father failed to demonstrate "good cause" for transferring this proceeding to Seneca County (§ 174; see Matter of Bonnell v. Rodgers, 106 A.D.3d 1515, 1515, 966 N.Y.S.2d 316 [4th Dept. 2013], lv denied 21 N.Y.3d 864, 2013 WL 4790632 [2013] ).
We further conclude that the father waived his contention that the mother failed to establish the requisite change in circumstances warranting an inquiry into the best interests of the child inasmuch as he also alleged in his cross petition that there had been such a change in circumstances (see Matter of Biernbaum v. Burdick, 162 A.D.3d 1664, 1665, 80 N.Y.S.3d 761 [4th Dept. 2018] ). In any event, we agree with the mother that she established the requisite change in circumstances inasmuch as the father's relationship with the subject child has deteriorated since the prior order (see id. ; Cook v. Cook, 142 A.D.3d 530, 533, 36 N.Y.S.3d 222 [2d Dept. 2016] ; Matter of Filippelli v. Chant, 40 A.D.3d 1221, 1222, 836 N.Y.S.2d 314 [3d Dept. 2007] ). Contrary to the father's related contention, we conclude that the court did not err in modifying the prior order inasmuch as "there is a sound and substantial basis in the record to support the court's determination that it was in the child's best interests to award [sole custody] to the [mother]" and to reduce the father's visitation ( Matter of Brewer v. Soles, 111 A.D.3d 1403, 1404, 975 N.Y.S.2d 299 [4th Dept. 2013] ; see Matter of Noble v. Gigon, 165 A.D.3d 1640, 1640–1641, 82 N.Y.S.3d 923 [4th Dept. 2018] ).
We agree with the father, however, that the court erred in conditioning the father's visitation upon his participation in therapeutic counseling. "Although a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation" ( Matter of Avdic v. Avdic, 125 A.D.3d 1534, 1535, 4 N.Y.S.3d 792 [4th Dept. 2015] ). Here, the court erred in making participation in counseling the "triggering event" in determining visitation ( id. ). We further conclude that the court impermissibly delegated the decision to hold family therapy sessions to the father's and the child's therapists and therefore improperly gave the therapists the authority to determine if and when visitation would occur (see Matter of Christina KK. v. Kathleen LL., 119 A.D.3d 1000, 1004, 990 N.Y.S.2d 100 [3d Dept. 2014] ; Matter of Roskwitalski v. Fleming, 105 A.D.3d 1432, 1433, 963 N.Y.S.2d 901 [4th Dept. 2013] ). We therefore modify the order by vacating the sixth, seventh, and eighth ordering paragraphs, and we remit the matter to Family Court to fashion a specific and definitive schedule for visitation between the father and the subject child.