HAMEED v. ALATAWANEH (2005)

 Petitioner appeals from an order suspending his supervised visitation with the parties' two children “until petitioner has obtained and participated in counseling at recommended intervals, and has taken all prescribed medication for a period of not less than six months.”   In addition, Family Court ordered that visitation could not resume until “ petitioner receives a recommendation from his counselor that a resumption of visitation is appropriate.”   We reject petitioner's contention that the court's determination to suspend visitation lacks a substantial basis in the record, particularly in view of the court's determination that such visitation is detrimental to the welfare of the children (see Murek v. Murek [Appeal No. 2], 292 A.D.2d 839, 840, 738 N.Y.S.2d 634;  Matter of Ashkar v. Ashkar, 278 A.D.2d 924, 718 N.Y.S.2d 561;  see generally Matter of Mallory v. Mashack, 266 A.D.2d 907, 698 N.Y.S.2d 387).   The court credited the testimony that petitioner verbally and physically abused respondent during the parties' exchanges of the children for the supervised visits previously ordered by the court.   That credibility determination is supported by the record and thus will not be disturbed (see Ashkar, 278 A.D.2d at 925, 718 N.Y.S.2d 561).

 The court erred, however, in ordering that visitation could not resume until petitioner has participated in the requisite counseling and has taken all prescribed medication for a minimum of six months (see Matter of Davenport v. Ouweleen, 5 A.D.3d 1079, 1079-1080, 773 N.Y.S.2d 701;  Murek, 292 A.D.2d at 840, 738 N.Y.S.2d 634;  Ralph M. v. Nancy M., 280 A.D.2d 995, 996, 721 N.Y.S.2d 192;  Shuchter v. Shuchter, 259 A.D.2d 1013, 688 N.Y.S.2d 323), and we therefore modify the order accordingly.   We further conclude that the court improperly delegated to a counselor the court's authority to determine issues involving the best interests of the children, i.e., whether visitation should resume and, if so, when (see Matter of Battista v. Battista, 294 A.D.2d 941, 741 N.Y.S.2d 782;  Wills v. Wills, 283 A.D.2d 1023, 1024, 723 N.Y.S.2d 920;  Matter of Henrietta D. v. Jack K., 272 A.D.2d 995, 707 N.Y.S.2d 560;  Shuchter, 259 A.D.2d 1013, 688 N.Y.S.2d 323), and thus we further modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the conditions imposed on the resumption of supervised visitation and as modified the order is affirmed without costs.

MEMORANDUM: