Opinion
2013-07-3
In the Matter of Tania E. TORRES, appellant, v. Oscar Alfredo Diaz OJEDA, respondent.
Robert Marinelli, New York, N.Y., for appellant. Virginia Geiss, Brooklyn, N.Y., for respondent.
Robert Marinelli, New York, N.Y., for appellant. Virginia Geiss, Brooklyn, N.Y., for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Sean Kim–Reuter and Janet Neustaetter of counsel), attorney for the child.
REINALDO E. RIVERA, J.P., PETER B. SKELOS, CHERYL E. CHAMBERS, and LEONARD B. AUSTIN, JJ.
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 Family Court, Kings County (Krauss, J.), dated April 23, 2012, as denied that branch of her petition which was for unsupervised visitation with the subject child and conditioned future supervised visitation upon her enrollment in an assisted outpatient treatment program.
ORDERED that the order is modified, on the law, by deleting the provision thereof conditioning future supervised visitation upon the mother's enrollment in an assisted outpatient treatment program, and substituting therefor a provision directing the mother to enroll in an assisted outpatient treatment program as a component of supervised visitation; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
“[T]he determination of visitation is within the sound discretion of the trial court based upon the best interests of the child, and its determination will not be set aside unless it lacks a sound and substantial basis in the record” ( Matter of Lane v. Lane, 68 A.D.3d 995, 997, 892 N.Y.S.2d 130;see Matter of Thomas v. Thomas, 35 A.D.3d 868, 869, 826 N.Y.S.2d 438;Matter of Brian S. v. Stephanie P., 34 A.D.3d 685, 686, 825 N.Y.S.2d 232;Matter of Herrera v. O'Neill, 20 A.D.3d 422, 423, 798 N.Y.S.2d 126;Jordan v. Jordan, 8 A.D.3d 444, 445, 779 N.Y.S.2d 121;Maloney v. Maloney, 208 A.D.2d 603, 617 N.Y.S.2d 190). Here, the Family Court's determination to deny that branch of the mother's petition which was for unsupervised visitation has a sound and substantial basis in the record, and was consistent with the testimony of the court-appointed forensic psychiatrist ( see Matter of Van Dunk v. Bonilla, 100 A.D.3d 1008, 955 N.Y.S.2d 150;Matter of Andrews v. Mouzon, 80 A.D.3d 761, 915 N.Y.S.2d 604;Anonymous v. Anonymous, 5 A.D.3d 516, 517, 772 N.Y.S.2d 866) and the position of the attorney for the child ( see Matter of Andrews v. Mouzon, 80 A.D.3d at 761, 915 N.Y.S.2d 604). In addition, the determination to continue to have the mother's visitation supervised by the father is consistent with the best interests of the child.
However, “a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation” (Matter of Lane v. Lane, 68 A.D.3d at 997–998, 892 N.Y.S.2d 130;see Matter of Lew v. Lew, 104 A.D.3d 946, 946–947, 961 N.Y.S.2d 579;Matter of Smith v. Dawn F.B., 88 A.D.3d 729, 730, 930 N.Y.S.2d 75;Matter of Thompson v. Yu–Thompson, 41 A.D.3d 487, 488, 837 N.Y.S.2d 313;Jordan v. Jordan, 8 A.D.3d at 445, 779 N.Y.S.2d 121;Matter of Williams v. O'Toole, 4 A.D.3d 371, 372, 771 N.Y.S.2d 546). Thus, the Family Court should have directed the mother to enroll in an assisted outpatient treatment program as a component of supervised visitation.