| Matter of Vieira v Huff |
| 2011 NY Slip Op 03393 [83 AD3d 1520] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Lionel T. Vieira, Respondent, v Diane P.Huff, Appellant. |
—[*1] Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), forpetitioner-respondent. Robert L. Gosper, Attorney for the Child, Canandaigua, for Benjamin H.
Appeal from an order of the Family Court, Ontario County (Craig J. Doran, J.), enteredJanuary 27, 2010 in a proceeding pursuant to Family Court Act article 6. The order grantedcustody of the parties' child to petitioner.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the condition imposed on any future application by respondent to modify her visitationand as modified the order is affirmed without costs.
Memorandum: Respondent mother appeals from an order that modified an order pursuant towhich the parties had joint custody of the child, with primary physical placement with themother. By the order on appeal, Family Court granted sole legal and physical custody of theparties' child to petitioner father, directed that the mother's visitation with the child besupervised, and further directed the mother to obtain mental health counseling before filing anapplication to modify her visitation. Based on the record before us, we conclude that the courtproperly determined that the father established a change in circumstances reflecting " 'a real needfor change to ensure the best interest[s] of the child' " (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417 [2003]). We furtherconclude that the award of sole legal and physical custody to the father is in the best interests ofthe child, upon considering the appropriate factors to warrant that award (see generallyEschbach v Eschbach, 56 NY2d 167, 174 [1982]; Fox v Fox, 177 AD2d 209 [1992]).We note in particular that the mental health expert who evaluated the mother testified that shesuffered from a delusional disorder and was not likely to benefit from therapy because she wasnot able to recognize alternative possibilities and explanations for her delusions, nor was she ableto form a trusting bond with her therapist. Although we agree with the mother that the court erredin awarding temporary custody of the parties' child to the father during the course of theevidentiary hearing, that error is of no moment under the circumstances of this case inasmuch asthe record of the hearing upon its completion fully supports the court's determination (see Matter of Darryl B.W. v [*2]Sharon M.W., 49 AD3d 1246, 1247 [2008]).
We further reject the mother's contention that the court erred in directing that her visitationbe supervised. Supervised visitation is a matter left to the sound discretion of the court and willnot be disturbed where, as here, there is a sound and substantial basis in the record to supportsuch visitation (see Matter of Chilbert vSoler, 77 AD3d 1405, 1406 [2010], lv denied 16 NY3d 701 [2011]). Nor did thecourt abuse its discretion in directing that the parties agree to a visitation schedule, taking intoconsideration the availability of the person supervising visitation (cf. Matter of William BB. v SusanDD., 31 AD3d 907, 908 [2006]). We note in any event that the court indicated that itwould assign a visitation schedule in the event that the parties could not reach an agreement.
Finally, we agree with the mother that the court lacked the authority to condition any futureapplication for modification of her visitation on her participation in mental health counseling (see Matter of Bray v DeStevens, 78AD3d 1564, 1565 [2010]; Matter ofHameed v Alatawaneh, 19 AD3d 1135, 1136 [2005]), and we therefore modify the orderaccordingly. Present—Smith, J.P., Centra, Peradotto, Gorski and Martoche, JJ.