IN RE: Laquanda PARRIS (2019)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a new hearing, with all convenient speed, on the father's petition and a new determination thereafter.

The determination of parental access is within the sound discretion of the hearing court based upon the best interests of the child (see Matter of Lane v. Lane, 68 A.D.3d 995, 996–997, 892 N.Y.S.2d 130;  Matter of Sinnott–Turner v. Kolba, 60 A.D.3d 774, 775, 875 N.Y.S.2d 512;  Cashel v. Cashel, 46 A.D.3d 501, 501, 845 N.Y.S.2d 920).  Parental access is a “joint right of the noncustodial parent and of the child” (Weiss v. Weiss, 52 N.Y.2d 170, 175, 436 N.Y.S.2d 862, 418 N.E.2d 377;  see McGrath v. D'Angio–McGrath, 42 A.D.3d 440, 441, 839 N.Y.S.2d 537).  The denial of parental access to a natural parent is “such a drastic remedy” that it should only be considered when there is substantial evidence that parental access would be “detrimental to the welfare of the child” (Bubbins v. Bubbins, 136 A.D.2d 672, 672, 524 N.Y.S.2d 50 [internal quotation marks omitted];  see Matter of Dey v. Minvielle, 154 A.D.3d 750, 751, 61 N.Y.S.3d 685).  Parental access with a noncustodial parent is presumed to be in the best interests of the child (see Matter of Granger v. Misercola, 21 N.Y.3d 86, 90, 967 N.Y.S.2d 872, 990 N.E.2d 110;  Matter of Grimes v. Pignalosa–Grimes, 165 A.D.3d 796, 797, 85 N.Y.S.3d 133;  Matter of Irizarry v. Jorawar, 161 A.D.3d 863, 864, 73 N.Y.S.3d 458).  However, the presumption may be overcome upon a showing, by a preponderance of the evidence, that parental access would be “harmful to the child's welfare or not in the child's best interests” (Matter of Kadio v. Volino, 126 A.D.3d 1253, 1254, 4 N.Y.S.3d 766;  see Matter of Dey v. Minvielle, 154 A.D.3d at 751, 61 N.Y.S.3d 685).

Here, a preponderance of the evidence failed to demonstrate that supervised parental access with the father would be harmful to the children or that the father forfeited his right to parental access.  Thus, the order of the Supreme Court, in effect, denying the father's petition for parental access with the children is not supported by a sound and substantial basis in the record (see Matter of Dey v. Minvielle, 154 A.D.3d at 751, 61 N.Y.S.3d 685;  Matter of Nixon v. Ferrone, 153 A.D.3d 625, 627, 60 N.Y.S.3d 256;  Matter of Gonzalez v. Ross, 140 A.D.3d 869, 872, 33 N.Y.S.3d 394).

Moreover, to the extent the order directs counseling and/or compliance with prescribed medication as a pre-condition for the father's future parental access or re-application for parental access, the order is improper, as a court may not order counseling as a condition of future parental access or re-application for parental access (see Matter of Lane v. Lane, 68 A.D.3d at 997, 892 N.Y.S.2d 130;  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 444, 445, 779 N.Y.S.2d 121).

Since more than a year has passed since the order was issued, a new hearing should be held on the father's petition.

SCHEINKMAN, P.J., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.