MACKENZIE v. MARY (2007)

 Family Court properly granted the petition to modify a prior order of custody and visitation by restricting the visitation of respondents with their granddaughter, petitioner's daughter, and properly denied respondents' cross petition seeking custody of the child.   There is sufficient evidence in the record to support the court's determination that respondents' continued unsupervised visitation with the child is not in her best interests (Domestic Relations Law § 72[1] ).   With respect to their cross petition, respondents failed to establish that petitioner relinquished his parental right to custody because of surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances (see Matter of Katherine D. v. Lawrence D., 32 A.D.3d 1350, 822 N.Y.S.2d 349, lv. denied 7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990;  Matter of Gary G. v. Roslyn P., 248 A.D.2d 980, 981, 670 N.Y.S.2d 270).   In any event, there is no evidence in the record to support a determination that the best interests of the child warrant a change in custody from petitioner to respondents.   We conclude, however, that the court erred in ordering that respondents may not make any further application to the court regarding the custody and visitation of the child without the approval of the child's counselor.   The counselor should not be required to pass upon the merits of respondents' petitions (see Matter of Shreve v. Shreve, 229 A.D.2d 1005, 1006, 645 N.Y.S.2d 198).   We therefore modify the order accordingly.   We have reviewed the remaining contentions on appeal and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the fourth ordering paragraph and as modified the order is affirmed without costs.

MEMORANDUM: