Opinion
12-01-2016
In re JAMEL W., Petitioner–Appellant, Stacey J., Respondent–Respondent.
Leslie S. Lowenstein, Woodmere, for appellant. Stacey J., respondent pro se. Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Leslie S. Lowenstein, Woodmere, for appellant.
Stacey J., respondent pro se.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.
Order, Family Court, New York County (George J. Jurow, J.H.O.), entered on or about November 5, 2015, to the extent it placed petitioner father on probation, pursuant to Family Court Act § 656, and directed him to comply with the conditions of probation, including monthly psychiatric monitoring as arranged by the New York County Mental Health Services, for a two-year time period, as a component of visitation, unanimously affirmed, without costs.
The father argues that the court lacked jurisdiction over his modification petition because he did not consent to have the matter heard and determined by a judicial hearing officer (JHO). However, it was undisputed that he signed a consent form in the underlying custody proceeding that included his consent to a determination by a JHO in any supplementary proceedings. The father does not dispute that his modification petition was a supplementary proceeding and he fails to cite evidence of bias or other misconduct by the JHO (see Matter of Bay v. Solla, 113 A.D.3d 482, 483, 978 N.Y.S.2d 679 [1st Dept.2014], lv. denied 23 N.Y.3d 901, 2014 WL 1704192 [2014] ). Thus, the court had the requisite jurisdiction (see Baines v. Shapiro, 299 A.D.2d 193, 748 N.Y.S.2d 868 [1st Dept.2002] ).
Visitation is premised upon a consideration of the best interests of the child, and visitation with a biological parent is presumed to be in the child's best interests, absent proof that such visitation would be harmful (see Matter of Tristram K., 25 A.D.3d 222, 228, 804 N.Y.S.2d 83 [1st Dept.2005] ).
This Court previously affirmed the determination that monthly psychiatric monitoring of the father as a component of visitation was appropriate given the recommendations of the evaluator and other experts (see Matter of Jamel W. v. Stacey J., 136 A.D.3d 552, 26 N.Y.S.3d 30 [1st Dept.2016] ). The father failed to present evidence of a change in his mental health status warranting elimination of this component of visitation. His recent custody of a special needs child making compliance with this requirement more difficult did not demonstrate that it was in the best interests of the parties' child to remove this requirement.
TOM, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, KAHN, JJ., concur.