Opinion
28 CAF 22-00138
02-10-2023
In the Matter of Ashley BONILLA-WRIGHT, Petitioner-Respondent, v. Terrance WRIGHT, Jr., Respondent-Appellant.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR RESPONDENT-APPELLANT. MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR PETITIONER-RESPONDENT. JESSICA L. WRIGHT, ROCHESTER, ATTORNEY FOR THE CHILDREN.
ERIK TEIFKE, ACTING PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR RESPONDENT-APPELLANT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR PETITIONER-RESPONDENT.
JESSICA L. WRIGHT, ROCHESTER, ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the first ordering paragraph to the extent that it conditions the resumption of unsupervised overnight weekend visitation on the participation of the father and the children in therapeutic counseling and by vacating the second ordering paragraph to the extent that it delegates authority to a supervising agency to determine the father's receipt of weekly supervised visitation, and as modified the order is affirmed and the matter is remitted to Family Court, Monroe County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Family Court Act article 6, respondent father appeals from an order that modified the parties’ prior order of custody and visitation. The prior order, in relevant part, granted respondent mother sole custody and primary physical residence of the subject children, with the father having weekend overnight visitation. After an argument that escalated to a physical encounter during a visitation exchange, in which the father punched the mother, the mother filed the instant petition seeking to modify the prior order by terminating the father's overnight visitation. Following a hearing, Family Court rendered a bench decision determining that a change in circumstances had occurred but that, despite some indication in the record that the children may have preferred not to see the father, continuation of weekly contact with the father was in the children's best interests. The court decided to reduce the father's visitation by conditioning the resumption of unsupervised weekend overnight visitation on the participation of the father and the children in therapeutic counseling and, in the interim, providing one hour of supervised visitation per week at a particular supervised visitation agency.
Contrary to the father's contention, the court properly determined that the mother "establish[ed] the requisite change in circumstances warranting an inquiry into the best interests of the child" ( 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] ). The incident of domestic violence in the children's presence (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 Pecore v. Blodgett , 111 A.D.3d 1405, 1405-1406, 975 N.Y.S.2d 301 [4th Dept. 2013], lv denied 22 N.Y.3d 864, 2014 WL 1243626 [2014] ) and the deterioration of the father's relationship with the children (see Rice , 167 A.D.3d at 1530, 90 N.Y.S.3d 774 ) constituted the requisite change in circumstances.
Although we reject the father's contention that the court erred in directing that the interim visitation be supervised (see Matter of Edmonds v. Lewis , 175 A.D.3d 1040, 1042, 108 N.Y.S.3d 611 [4th Dept. 2019], lv denied 34 N.Y.3d 909, 2020 WL 728588 [2020] ), we agree with the father that the court erred in failing to set an appropriate supervised visitation schedule by implicitly leaving it to the agency to determine whether the father would receive any such visitation (see Matter of Ordona v. Cothern , 126 A.D.3d 1544, 1545-1546, 6 N.Y.S.3d 860 [4th Dept. 2015] ; see also Rice , 167 A.D.3d at 1530-1531, 90 N.Y.S.3d 774 ). We therefore modify the order accordingly.
The father further contends that the court erred in making participation in therapeutic counseling a prerequisite to the resumption of unsupervised overnight weekend visitation. We agree. Initially, although the first ordering paragraph of the order on appeal does not clearly condition the resumption of unsupervised overnight weekend visitation on participation in therapeutic counseling, the court expressly imposed that condition in its bench decision. Where, as here, "there is a discrepancy between the order and the decision, the decision controls," and we therefore deem the condition included in the order (see Matter of Sturnick v. Hobbs , 191 A.D.3d 1375, 1376, 141 N.Y.S.3d 811 [4th Dept. 2021] ). "Although a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation" ( Matter of Avdic v. Avdic , 125 A.D.3d 1534, 1535, 4 N.Y.S.3d 792 [4th Dept. 2015] ; see Matter of Lane v. Rawleigh , 188 A.D.3d 1772, 1773, 132 N.Y.S.3d 912 [4th Dept. 2020] ; Matter of Krier v. Krier , 178 A.D.3d 1372, 1374, 116 N.Y.S.3d 808 [4th Dept. 2019] ). We therefore further modify the order accordingly, and we remit the matter to Family Court to fashion a specific and definitive schedule for visitation between the father and the children.