IN RE: Kimberly CRUZ (2025)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Emily Ruben, J.), dated September 26, 2023.  The order, insofar as appealed from, after a hearing, limited the father's parental access with the parties’ child to supervised therapeutic parental access and conditioned the commencement of the father's parental access on his completion of any courses required by the therapeutic program.

ORDERED that the order is modified insofar as appealed from, on the law and in the exercise of discretion, by deleting the provision thereof conditioning the commencement of the father's parental access on his completion of any courses required by the therapeutic program;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The mother and the father have one child together, born in 2011.  In 2019, the mother commenced this proceeding seeking sole legal and residential custody of the child.  After a hearing, in an order dated September 26, 2023, the Family Court awarded the mother sole legal and residential custody of the child and limited the father's parental access with the child to supervised therapeutic parental access.  The court conditioned the commencement of the father's parental access on his completion of any courses required by the therapeutic program.  The father appeals.

“The 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 Shimunov v. Davydov, 179 A.D.3d 812, 813, 117 N.Y.S.3d 700 [internal quotation marks omitted]).  Here, the Family Court's determination to limit the father's parental access with the child to supervised therapeutic parental access was supported by a sound and substantial basis in the record and, therefore, should not be disturbed (see Matter of Henry v. Tucker, 157 A.D.3d 892, 893, 67 N.Y.S.3d 475).

“A court deciding a custody proceeding ‘may properly direct a party to submit to counseling or treatment as a component of a [parental access] or custody order’ ” (Matter of Mazo v. Volpert, 223 A.D.3d 907, 909, 205 N.Y.S.3d 97, quoting Lajqi v. Lajqi, 130 A.D.3d 687, 688, 11 N.Y.S.3d 860).  “However, a court may not direct that a parent undergo counseling or treatment as a condition of future parental access or reapplication for parental access rights” (Matter of Coley v. Steiz, 215 A.D.3d 830, 832, 187 N.Y.S.3d 726;  see Matter of Mazo v. Volpert, 223 A.D.3d at 909, 205 N.Y.S.3d 97).  Here, the Family Court should not have conditioned the commencement of the father's parental access on his completion of any courses required by the therapeutic program (see Matter of Badalyan v. Antaplian, ––– A.D.3d ––––, ––––, ––– N.Y.S.3d ––––, 2025 N.Y. Slip Op. 02769, *2;  Matter of Mazo v. Volpert, 223 A.D.3d at 910, 205 N.Y.S.3d 97;  Matter of Welch v. Taylor, 115 A.D.3d 754, 756, 981 N.Y.S.2d 777).  Accordingly, we modify the order so as to eliminate this condition.

GENOVESI, J.P., WOOTEN, VENTURA and GOLIA, JJ., concur.