Opinion
1168 CAF 18–00746
12-20-2019
In the Matter of Jessica W. BENSON, Petitioner–Respondent, v. James T. SMITH, Respondent–Appellant. (Appeal No. 2.)
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR RESPONDENT–APPELLANT. RAYMOND P. KOT, II, Grand Island, WILLIAMSVILLE, FOR PETITIONER–RESPONDENT. MARYBETH D. BARNET, MIDDLESEX, ATTORNEY FOR THE CHILD.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR RESPONDENT–APPELLANT.
RAYMOND P. KOT, II, Grand Island, WILLIAMSVILLE, FOR PETITIONER–RESPONDENT.
MARYBETH D. BARNET, MIDDLESEX, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating those parts denying respondent visitation or contact with the child and imposing conditions on any future application by respondent to modify his visitation, and granting respondent supervised visitation, and as modified the order is affirmed without costs and the matter remitted to Family Court, Steuben County, to set an appropriate visitation schedule in accordance with the following memorandum: Respondent father appeals from an order that, inter alia, granted petitioner mother's petition for sole custody of the subject child and denied the father any visitation or contact. We previously held this case, reserved decision, and remitted the matter to Family Court to set forth the factual findings supporting its determination ( Matter of Benson v. Smith , 170 A.D.3d 1640, 1641, 94 N.Y.S.3d 901 [4th Dept. 2019] ). Upon remittal, the court issued an oral and a written decision setting forth those findings.
We reject the father's contention that the court erred in awarding the mother sole custody of the child. "A custody determination by the trial court must be accorded great deference ... and should not be disturbed where ... it is supported by a sound and substantial basis in the record" ( Matter of Abdo v. Ahmed , 162 A.D.3d 1742, 1743, 76 N.Y.S.3d 436 [4th Dept. 2018] [internal quotation marks omitted]; see generally Eschbach v. Eschbach , 56 N.Y.2d 167, 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). Here, the court's determination is supported by a sound and substantial basis in the record (see Matter of Buckley v. Kleinahans , 162 A.D.3d 1561, 1562, 78 N.Y.S.3d 569 [4th Dept. 2018] ; see also Matter of Rice v. Wightman , 167 A.D.3d 1529, 1530, 90 N.Y.S.3d 774 [4th Dept. 2018], lv denied 33 N.Y.3d 903, 2019 WL 1997567 [2019] ). Contrary to the father's assertion, the parties' acrimonious relationship demonstrated that joint custody was not appropriate (see Matter of Kleinbach v. Cullerton , 151 A.D.3d 1686, 1687, 56 N.Y.S.3d 733 [4th Dept. 2017] ), and there is no basis to disturb the court's credibility determinations (see generally Matter of Belcher v. Morgado , 147 A.D.3d 1335, 1336, 46 N.Y.S.3d 737 [4th Dept. 2017] ).
We agree with the father, however, that the court erred in denying him any visitation or contact with the child (see Kleinbach , 151 A.D.3d at 1687, 56 N.Y.S.3d 733 ; see also Guy v. Guy , 147 A.D.3d 1305, 1306, 46 N.Y.S.3d 337 [4th Dept. 2017] ). It is well established that "visitation with a noncustodial parent is generally presumed to be in a child's best interests ... and denial of such visitation is a drastic remedy to be employed only where there are compelling reasons for doing so and substantial evidence that visitation will be harmful to the child[ ]'s welfare" ( Matter of Diedrich v. Vandermallie , 90 A.D.3d 1511, 1511, 934 N.Y.S.2d 735 [4th Dept. 2011] [internal quotation marks omitted] ). Here, the court did not make the requisite threshold finding that visitation would be harmful to the child, and the record would not support such a finding in any event. We therefore modify the order accordingly, and we remit the matter to Family Court to fashion an appropriate visitation schedule granting the father not less than two hours of supervised visitation per week.
We further agree with the father that the court erred in conditioning his right to file a future modification petition on his release from custody, his "successfully engag[ing]" in mental health treatment, and his prospective waiver of his right to confidentiality with respect to his mental health records. It is well established that a court lacks authority to condition any future application for modification of a parent's visitation on his or her participation in mental health treatment (see Matter of Allen v. Boswell , 149 A.D.3d 1528, 1529, 53 N.Y.S.3d 432 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4653468 [2017] ; Matter of Ordona v. Cothern , 126 A.D.3d 1544, 1546, 6 N.Y.S.3d 860 [4th Dept. 2015] ), much less on his or her release from custody (see generally Matter of Granger v. Misercola , 21 N.Y.3d 86, 91, 967 N.Y.S.2d 872, 990 N.E.2d 110 [2013] ) and waiver of statutory confidentiality rights (see generally Mental Hygiene Law § 33.13[c], [e], [f] ). We therefore further modify the order by vacating the conditions imposed on any future application by the father to modify his visitation (see Matter of Vieira v. Huff , 83 A.D.3d 1520, 1521, 922 N.Y.S.2d 684 [4th Dept. 2011] ;see also Matter of Sanchez v. Mercedes , 172 A.D.3d 1898, 1899, 97 N.Y.S.3d 905 [4th Dept. 2019], lv denied 33 N.Y.3d 911, 2019 WL 4071772 [2019] ).