Opinion
10-07-2016
In the Matter of Jackie L. MICKLE, Petitioner–Appellant, v. Michael P. MICKLE, Respondent–Respondent.
Roy G. Franks, Marion, for petitioner-appellant. David E. Coddington, Attorney for the Children, Hornell.
Appeal from an order of the Family Court, Allegany County (Thomas P. Brown, J.), entered October 14, 2014 in a proceeding pursuant to Family Court Act article 6. The order, inter alia, awarded sole custody of the children to respondent.
Roy G. Franks, Marion, for petitioner-appellant.
David E. Coddington, Attorney for the Children, Hornell.
MEMORANDUM:
Petitioner mother appeals from an order granting respondent father sole custody of the children. We reject the mother's contention that she was denied effective assistance of counsel. The mother failed to “demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings” (Matter of Brown v. Gandy, 125 A.D.3d 1389, 1390, 3 N.Y.S.3d 486 [internal quotation marks omitted] ). We agree with the mother, however, that Family Court erred in requiring the mother to “actively engage[ ]” in individual counseling before seeking visitation with the children (see Matter of Ordona v. Cothern, 126 A.D.3d 1544, 1546, 6 N.Y.S.3d 860 ; Matter of Vieira v. Huff, 83 A.D.3d 1520, 1522, 922 N.Y.S.2d 684 ). “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 ). We therefore modify the order accordingly.
The mother's contention that the court erred in issuing an order of protection is moot inasmuch as the order has expired by its own terms (see Matter of Whitney v. Judge, 138 A.D.3d 1381, 1382, 30 N.Y.S.3d 412, lv. denied 27 N.Y.3d 911, 2016 WL 3582574 ; Matter of Perez v. Sepulveda, 60 A.D.3d 1072, 1073, 877 N.Y.S.2d 344, lv. dismissed 12 N.Y.3d 899, 884 N.Y.S.2d 680, 912 N.E.2d 1060 ). We have considered the mother's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by striking the provision requiring petitioner to participate in counseling as a prerequisite for seeking visitation, and as modified the order is affirmed without costs.
WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, and SCUDDER, JJ., concur.