Opinion
2012-02-23
In re SANDRA C., Petitioner–Appellant, v. ENRIQUE M., Respondent–Respondent.
Dora M. Lassinger, East Rockaway, for appellant. Louise Belulovich, New York, for respondent.
Dora M. Lassinger, East Rockaway, for appellant. Louise Belulovich, New York, for respondent.
Tamara A. Steckler, The Legal Aid Society, New York (Elana Roffman of counsel), attorney for the child.
Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about March 25, 2011, which, upon respondent's motion to modify an order of visitation, same court and Judge, entered on or about May 24, 2010, suspended petitioner's visitation “until such time as she can provide evidence of individual counseling to address her inability to communicate with [respondent] without hostility,” unanimously reversed, on the law, without costs, and the matter remitted for further proceedings consistent herewith before a different Judge.
Family Court erred in modifying the May 24, 2010 order of visitation without first conducting a full evidentiary hearing to determine whether there had been a subsequent change in circumstances and whether modification was in the child's best interests ( see Matter of Santiago v. Halbal, 88 A.D.3d 616, 932 N.Y.S.2d 32 [2011]; FCA § 467[b][ii] ). Moreover, the court lacked the authority to condition the mother's continued visitation upon her undergoing therapy ( Schneider v. Schneider, 127 A.D.2d 491, 495, 511 N.Y.S.2d 847 [1987], affd. on other grounds 70 N.Y.2d 739, 519 N.Y.S.2d 962, 514 N.E.2d 382 [1987]; Matter of Smith v. Dawn F.B., 88 A.D.3d 729, 730, 930 N.Y.S.2d 75 [2011], lv. dismissed 2011 N.Y. Slip Op. 93103, 2011 WL 6350627 [2011]; Matter of Saggese v. Steinmetz, 83 A.D.3d 1144, 1145, 921 N.Y.S.2d 360 [2011], lv. denied 17 N.Y.3d 708, 2011 WL 4028648 [2011]; Matter of Vieira v. Huff, 83 A.D.3d 1520, 1522, 922 N.Y.S.2d 684 [2011] ).