Opinion
2011-10-4
In the Matter of Margaret Regan SMITH, on behalf of HUNTER I. (Anonymous), respondent,v.DAWN F.B. (Anonymous), appellant;Richard I. (Anonymous), nonparty-respondent.
Michael G. Paul, New City, N.Y., for appellant.Neal D. Futerfas, White Plains, N.Y., attorney for the child.McCormack & Phillips, Nyack, N.Y. (Ronald A. Phillips of counsel), for nonparty-respondent.
Michael G. Paul, New City, N.Y., for appellant.Neal D. Futerfas, White Plains, N.Y., attorney for the child.McCormack & Phillips, Nyack, N.Y. (Ronald A. Phillips of counsel), for nonparty-respondent.
In a visitation proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Rockland County (Christopher, J.), dated September 15, 2010, as, after a fact-finding hearing, granted the petition of the attorney for the child alleging that she violated an order of custody and visitation, prohibited her from having any contact with her son, directed that she submit to a mental health evaluation, directed her to follow treatment recommendations resulting from that evaluation, and conditioned her application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional.
ORDERED that the order is modified, on the law, by deleting the provision thereof conditioning the mother's application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
“[T]he determination of visitation is within the sound discretion of the trial court based upon the best interests of the child, and its determination will not be set aside unless it lacks a sound and substantial basis in the record” ( Matter of Lane v. Lane, 68 A.D.3d 995, 997, 892 N.Y.S.2d 130; see Matter of Thomas v. Thomas, 35 A.D.3d 868, 869, 826 N.Y.S.2d 438; Matter of Herrera v. O'Neill, 20 A.D.3d 422, 423, 798 N.Y.S.2d 126; Jordan v. Jordan, 8 A.D.3d 444, 445, 779 N.Y.S.2d 121; Maloney v. Maloney, 208 A.D.2d 603, 617 N.Y.S.2d 190).
Here, the Family Court's determination that it was in the child's best interest to suspend supervised visitation and prohibit all contact with the mother had a sound and substantial basis in the record. The mother, by her own admission, violated the express terms of the Family Court's previous order, which only permitted visitation supervised by designated individuals, by having unsupervised contact with the child at two separate little league baseball games. Moreover, the mother contributed to certain events at a recent therapeutic visit which adversely affected the child and undermined the progress of the therapeutic visitation, as demonstrated by testimony from the father, testimony from the mother, and a letter from a licensed clinical social worker who had been counseling the child.
However, a court may not order that a parent undergo counseling or treatment as a condition of future visitation or re-application for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation ( see Matter of Lane v. Lane, 68 A.D.3d at 997–998, 892 N.Y.S.2d 130; Matter of Thompson v. Yu–Thompson, 41 A.D.3d 487, 488, 837 N.Y.S.2d 313; Jordan v. Jordan, 8 A.D.3d at 445, 779 N.Y.S.2d 121; Matter of Williams v. O'Toole, 4 A.D.3d 371, 372, 771 N.Y.S.2d 546). Here, the Family Court improperly conditioned the mother's application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional. However, the Family Court properly directed the mother to submit to a mental health evaluation for use in any future determination of visitation ( see Zafran v. Zafran, 28 A.D.3d 753, 756–757, 814 N.Y.S.2d 669).
The mother's remaining contentions are without merit.