| Matter of Smith v Dawn F.B. |
| 2011 NY Slip Op 07062 [88 AD3d 729] |
| October 4, 2011 |
| Appellate Division, Second Department |
| In the Matter of Margaret Regan Smith, on Behalf of Hunter I., anInfant, Respondent, v Dawn F.B., Appellant. Richard I., NonpartyRespondent. |
—[*1] Neal D. Futerfas, White Plains, N.Y., Attorney for the Child. McCormack & Phillips, Nyack, N.Y. (Ronald A. Phillips of counsel), for nonpartyrespondent.
In a visitation proceeding pursuant to Family Court Act article 6, the mother appeals, aslimited 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 petitionof 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 healthevaluation, directed her to follow treatment recommendations resulting from that evaluation, andconditioned 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 conditioningthe 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 isaffirmed insofar as appealed from, without costs or disbursements.
"[T]he determination of visitation is within the sound discretion of the trial court based uponthe best interests of the child, and its determination will not be set aside unless it lacks a soundand substantial basis in the record" (Matter of Lane v Lane, 68 AD3d 995, 997 [2009]; see Matter [*2]of Thomas v Thomas, 35 AD3d 868, 869 [2006]; Matter of Herrera v O'Neill, 20 AD3d422, 423 [2005]; Jordan vJordan, 8 AD3d 444, 445 [2004]; Maloney v Maloney, 208 AD2d 603 [1994]).
Here, the Family Court's determination that it was in the child's best interests to suspendsupervised visitation and prohibit all contact with the mother had a sound and substantial basis inthe record. The mother, by her own admission, violated the express terms of the Family Court'sprevious order, which only permitted visitation supervised by designated individuals, by havingunsupervised contact with the child at two separate little league baseball games. Moreover, themother contributed to certain events at a recent therapeutic visit which adversely affected thechild and undermined the progress of the therapeutic visitation, as demonstrated by testimonyfrom the father, testimony from the mother, and a letter from a licensed clinical social workerwho had been counseling the child.
However, a court may not order that a parent undergo counseling or treatment as a conditionof future visitation or reapplication for visitation rights, but may only direct a party to submit tocounseling or treatment as a component of visitation (see Matter of Lane v Lane, 68AD3d at 997-998; Matter of Thompsonv Yu-Thompson, 41 AD3d 487, 488 [2007]; Jordan v Jordan, 8 AD3d at 445; Matter of Williams v O'Toole, 4 AD3d371, 372 [2004]). Here, the Family Court improperly conditioned the mother's applicationfor resumption of visitation upon her compliance with treatment, including medication,recommended by a mental health professional. However, the Family Court properly directed themother to submit to a mental health evaluation for use in any future determination of visitation(see Zafran v Zafran, 28 AD3d753, 756-757 [2006]).
The mother's remaining contentions are without merit. Rivera, J.P., Balkin, Hall and Cohen,JJ., concur.