Opinion
August 22, 1994
Appeal from the Family Court, Queens County (Fitzmaurice, J.).
Ordered that the order is modified, on the law, by deleting the provisions thereof which directed that visitation pursuant to an order of the same court, dated February 9, 1987, be held in abeyance, and which directed the father to participate in counseling; as so modified, the order is affirmed, without costs or disbursements.
"A noncustodial parent should have reasonable rights of visitation, and the denial of those rights to a natural parent is a drastic remedy that should only be invoked when there is substantial evidence that visitation would be detrimental to the child" (Paul G. v. Donna G., 175 A.D.2d 236, 237; see, Matter of Hughes v. Wiegman, 150 A.D.2d 449; Matter of Eric L. v. Dorothy L., 130 A.D.2d 660). "While the determination of a hearing court in a custody or visitation proceeding is entitled to great respect (Eschbach v. Eschbach, 56 N.Y.2d 167; Ira K. v. Frances K., 115 A.D.2d 699), `[a]n appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge, it allowed a custody [and/or visitation] determination to stand where it lack[ed] a sound and substantial basis in the record' (Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76)" (Valenza v Valenza, 143 A.D.2d 860, 862).
In the present case, there was no evidence that the father's continued visitation with the subject child in accordance with an order dated February 9, 1987 would be detrimental to the child's well-being (see, Matter of Thomas S. v. Kathleen Z., 149 A.D.2d 599, 599-600). In fact, the court-appointed psychiatrist who examined the parties testified that, while the child wished that the father no longer have visitation, she also indicated that the supervised visitation as provided in the previous order was acceptable. While the child's feelings and attitudes are relevant, they are not determinative (see, Resnick v. Zoldan, 134 A.D.2d 246, 248). Thus, the court erred in holding the previous order in abeyance until the subject child wished to visit with the father, effectively suspending the father's visitation rights.
Similarly, the court improperly ordered the father to undergo individual counseling (see, Nacson v. Nacson, 166 A.D.2d 510, 511; Schneider v. Schneider, 127 A.D.2d 491, affd 70 N.Y.2d 739). Here, the court-appointed psychiatrist did not recommend such counseling (cf., Resnick v. Zoldan, supra).
The court's determination that the mother did not willfully violate the 1987 visitation order was supported by a sound and substantial basis in the record and we decline to disturb it (see, Ginsberg v. Ginsberg, 164 A.D.2d 906). Although the mother was ambivalent as to whether the child had a relationship with the father, her conduct did not rise to the level of deliberate frustration of or active interference with the father's visitation rights (see, Ginsberg v. Ginsberg, supra; Resnick v Zoldan, supra). Bracken, J.P., Sullivan, Miller and Hart, JJ., concur.