| Matter of Torres v Ojeda |
| 2013 NY Slip Op 05091 [108 AD3d 570] |
| July 3, 2013 |
| Appellate Division, Second Department |
| In the Matter of Tania E. Torres,Appellant, v Oscar Alfredo Diaz Ojeda, Respondent. |
—[*1] Virginia Geiss, Brooklyn, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Sean Kim-Reuter and Janet Neustaetter ofcounsel), attorney for the child.
In related custody and visitation proceedings pursuant to Family Court Act article 6,the mother appeals, as limited by her brief, from so much of an order of the FamilyCourt, Kings County (Krauss, J.), dated April 23, 2012, as denied that branch of herpetition which was for unsupervised visitation with the subject child and conditionedfuture supervised visitation upon her enrollment in an assisted outpatient treatmentprogram.
Ordered that the order is modified, on the law, by deleting the provision thereofconditioning future supervised visitation upon the mother's enrollment in an assistedoutpatient treatment program, and substituting therefor a provision directing the motherto enroll in an assisted outpatient treatment program as a component of supervisedvisitation; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
"[T]he determination of visitation is within the sound discretion of the trial courtbased upon the best interests of the child, and its determination will not be set asideunless it lacks a sound and substantial basis in the record" (Matter of Lane v Lane, 68AD3d 995, 997 [2009]; seeMatter of Thomas v Thomas, 35 AD3d 868, 869 [2006]; Matter of Brian S. v StephanieP., 34 AD3d 685, 686 [2006]; Matter of Herrera v O'Neill, 20 AD3d 422, 423 [2005]; Jordan v Jordan, 8 AD3d444, 445 [2004]; Maloney v Maloney, 208 AD2d 603 [1994]). Here, theFamily Court's determination to deny that branch of the mother's petition which was forunsupervised visitation has a sound and substantial basis in the record, and wasconsistent with the testimony of the court-appointed forensic psychiatrist (see Matter of Van Dunk vBonilla, 100 AD3d 1008 [2012]; Matter of Andrews v Mouzon, 80 AD3d 761 [2011]; Anonymous v Anonymous, 5AD3d 516, 517 [2004]) and the position of the attorney for the child (see Matterof Andrews v Mouzon, 80 AD3d at 761). In addition, the determination to continueto have the mother's visitation supervised by the father is consistent with the bestinterests of the child.
However, "a court may not order that a parent undergo counseling or treatment as acondition of future visitation or reapplication for visitation rights, but may only direct aparty to submit to counseling or treatment as a component of visitation" (Matter ofLane v Lane, 68 AD3d [*2]at 997-998; see Matter of Lew v Lew, 104AD3d 946, 946-947 [2013]; Matter of Smith v Dawn F.B., 88 AD3d 729, 730 [2011];Matter of Thompson vYu-Thompson, 41 AD3d 487, 488 [2007]; Jordan v Jordan, 8 AD3d at445; Matter of Williams vO'Toole, 4 AD3d 371, 372 [2004]). Thus, the Family Court should havedirected the mother to enroll in an assisted outpatient treatment program as a componentof supervised visitation. Rivera, J.P., Skelos, Chambers and Austin, JJ., concur.