At page 1535 Striking conditioning of custody on counseling participation14 citing cases“although a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation”
- Matter of Bonilla-Wright v. Wright, 213 A.D.3d 1289 (N.Y. App. Div. 4th Dep't 2023).published"Although a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation" ( Matter of Avdic v…
- Matter of Sharlow v. Hughes, 213 A.D.3d 1200 (N.Y. App. Div. 4th Dep't 2023).publishedAlthough the court may include such directives as a component of visitation, it does not have the authority to make them a prerequisite to visitation ( see Matter of Waite v Clancy , 136 AD3d 1287, 1287 [4th Dept 2016]; Matter of Avdic v A…
- Matter of Krier v. Krier, 178 A.D.3d 1372 (N.Y. App. Div. 4th Dep't 2019).publishedContrary to the further contention of the mother and the AFC, the court did not err in including a directive that the mother obtain counseling as a component of the order on appeal inasmuch as the court did not "order such counseling as a…
- Matter of Rice v. Wightman, 2018 NY Slip Op 8813 (N.Y. App. Div. 4th Dep't 2018).published"Although a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation" ( Matter of [*2]Avdi…
- Mickle v. Mickle, 143 A.D.3d 1289 (N.Y. App. Div. 4th Dep't 2016).published “Although a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation” (Matter of Avdic v A…
- Cramer v. Cramer, 143 A.D.3d 1264 (N.Y. App. Div. 4th Dep't 2016).published Contrary to the mother’s contention, the court’s order does not require her to complete a parenting program and comply with mental health counseling as a prerequisite to filing a petition for modification of custody or visitation (see gene…
- Roseman v. Sierant, 142 A.D.3d 1323 (N.Y. App. Div. 4th Dep't 2016).published Finally, we agree with the father that the court erred in suspending the father’s visitation with the subject children until, inter alia, he completes an alcohol and drug evaluation and all recommended treatment (see Matter of Avdic v Avdi…
- Ordona v. Cothern, 126 A.D.3d 1544 (N.Y. App. Div. 4th Dep't 2015).published Furthermore, “[although a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation” (Matte…
- Mickle, Jackie L. v. Mickle, Michael P., No. CAF 14-02047 (N.Y. App. Div. 4th Dep't Oct. 7, 2016).published
- Ordona, Patrick v. Cothern, Jennifer, No. CAF 14-00451 (N.Y. App. Div. 4th Dep't Mar. 27, 2015).published
At page 1536 Determining best interests and required factual findings in custody cases10 citing cases“We therefore remit the matter to Family Court for a determination on the petition and cross petition, including specific findings, as to the best interests of the child, following an additional hearing if necessary.”
- Matter of Eddaoudi v. Obtenu, 240 A.D.3d 1437 (N.Y. App. Div. 4th Dep't 2025).publishedHere, the court did not make any findings with respect to the relevant factors that it considered in making a determination regarding the best interests of the child ( see Matter of Avdic v Avdic , 125 AD3d 1534, 1536 [4th Dept 2015]; see…
- Matter of Betz v. Betz, 232 A.D.3d 1287 (N.Y. App. Div. 4th Dep't 2024).publishedUnder these circumstances, we conclude that the order is appealable ( see generally Matter of Griselda N.G. v Yvette C. , 192 AD3d 592 , 593 [1st Dept 2021]; Matter of Avdic v Avdic , 125 AD3d 1534, 1536 [4th Dept 2015]).
- Matter of Miller v. Boyden, 227 A.D.3d 1545 (N.Y. App. Div. 4th Dep't 2024).publishedHere, the court completely failed to follow that well-established rule when it failed to issue any factual findings to support its determination ( see Brown , 166 AD3d at 1583-1584), either with respect to whether there had been a change i…
- Matter of Ianello v. Colonomos, 213 A.D.3d 1301 (N.Y. App. Div. 4th Dep't 2023).publishedHere, the court completely failed to follow that well-established rule when it failed to issue any factual findings to support its initial custody determination ( see Brown , 166 AD3d at 1583-1584), nor did it make any findings with respec…
- Matter of Brown v. Orr, 2018 NY Slip Op 7905 (N.Y. App. Div. 4th Dep't 2018).publishedWe therefore reverse the order, reinstate the mother's petition, and remit the matter to Family Court to make a determination on the petitions, including specific findings as to a change in circumstances and the best interests of the child…
- Matter of Sanchez v. Alvarez, 151 A.D.3d 1869 (N.Y. App. Div. 4th Dep't 2017).publishedWe conclude, however, that the court erred in ordering that the father complete a program of anger management classes as a condition of his access to the child (see Matter of Avdic v Avdic, 125 AD3d 1534, 1536 [2015]; Shuchter v Shuchter,…
- Mills, Allyson a. v. Rieman, Joel T., 128 A.D.3d 1486 (N.Y. App. Div. 4th Dep't 2015).publishedMoreover, the court failed to make any findings concerning the factors that must be considered in making a best interests determination (see Matter of Avdic v Avdic, 125 AD3d 1534, 1536 [2015]), and we conclude that “the record is insuffic…
- Ladd, Danielle R. v. Krupp, Matthew F., 136 A.D.3d 1391 (N.Y. App. Div. 4th Dep't 2016).publishedIt is well settled that a “ ‘concerted effort by one parent to interfere with the other parent’s contact with the child is so inimical to the best interests of the child ... as to, per se, raise a strong probability that [the interfering p…
- Majuk v. Carbone, 129 A.D.3d 1485 (N.Y. App. Div. 4th Dep't 2015).published Although no appeal lies from an order entered on default (see generally Hines v Hines, 125 AD2d 946, 946 [1986]), the record reflects that the father’s attorney appeared on his behalf, and it is well settled that “ ‘[a] party who is repres…
Other citing cases
- Matter of Lane v. Rawleigh, 188 A.D.3d 1772 (N.Y. App. Div. 4th Dep't 2020).published
- Viscuso, Angelo M. v. Viscuso, Susan M., 129 A.D.3d 1679 (N.Y. App. Div. 4th Dep't 2015).published
- Majuk, Barbara v. Carbone, Anthony, No. CAF 13-02017 (N.Y. App. Div. 4th Dep't June 12, 2015).published
v.
Refik Avdic, Susan B. Marris, Esq., Attorney for the Child, Appellant-Respondent
Appeals and cross appeal from an amended order of the Family Court, Oneida County (Louis P Gigliotti, A.J.), entered August 12, 2013 in proceedings pursuant to Family Court Act articles 4, 6 and 8. The amended order, among other things, adjudged that petitioner-respondent Zineta Avdic had willfully violated a court order and sentenced her to six weekends in jail and ordered the parties to enroll in therapeutic counseling.
[*1535] It is hereby ordered that the amended order so appealed from is unanimously modified on the law by striking the provision conditioning the custody of the subject child with petitioner on the participation of petitioner “and/or” the child in therapeutic counseling and as modified the amended order is affirmed without costs, and the matter is remitted to Family Court, Oneida County, for further proceedings in accordance with the following memorandum: In appeal No. 1, petitioner-respondent mother and the Attorney for the Child (AFC) each appeal, and respondent-petitioner father cross-appeals, from an amended order that, following a hearing on the father’s cross petition to modify a prior order of custody and visitation, conditioned the continuation of the mother’s joint custody of the child on, insofar as relevant to these appeals, the participation of the mother “and/or” the child in therapeutic counseling. In appeal No. 2, the mother and the AFC each appeal from an order that, following a hearing, modified the amended order in appeal No. 1 and awarded the father sole custody on the ground that the subject child failed and/or refused to attend therapeutic counseling.
We reject the contention of the father that the appeals of the mother and AFC from the amended order in appeal No. 1 were rendered moot by the subsequent order in appeal No. 2. The rights of the parties, and the best interests of their child, will be directly affected by the determination of appeal No. 1 and the interest of the parties and their child is an immediate consequence of that order (see generally Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). Furthermore, as discussed herein, Family Court was without authority to issue the order in appeal No. 2, and thus it cannot be said that the order in appeal No. 2 rendered moot the order in appeal No. 1.
In appeal No. 1, as the father correctly concedes, the court erred in conditioning the mother’s continued joint custody upon participation of the mother and/or the child in therapeutic counseling. Although a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation (see Matter of Sweet v Passno, 206 AD2d 639, 640 [1994]). Here, the court erred in making the failure, or refusal to participate in counseling the dispositive, triggering event in determining custody (see Matter of Vieira v Huff, 83 AD3d 1520, 1522 [2011]; Gadomski v Gadomski, 256 AD2d 675, 677 [1998]; Matter of Dennison v Short, 229 AD2d 676, 677 [1996]). We therefore modify the amended order by striking the provision transferring sole[*1536] custody to the father in the event that the mother and/or the child failed to attend and fully and meaningfully participate in the therapeutic counseling sessions ordered by the court.
With respect to appeal No. 1, we note that the court properly determined that there had been a sufficient change in circumstances to warrant a determination concerning the best interests of the child (see Matter of Darla N. v Christine N. [appeal No. 2], 289 AD2d 1012, 1012 [2001]). Nevertheless, although the court’s determination that the mother had engaged in parental alienation behavior raised a strong probability she is unfit to act as a custodial parent (see Matter of Amanda B. v Anthony B., 13 AD3d 1126, 1127 [2004]), the court failed to make any explicit findings concerning the relevant factors that must be considered in making a best interests determination so as to resolve the petition and cross petition (see Eschbach v Eschbach, 56 NY2d 167, 172-173 [1982]; Fox v Fox, 177 AD2d 209, 210 [1992]). We therefore remit the matter to Family Court for a determination on the petition and cross petition, including specific findings, as to the best interests of the child, following an additional hearing if necessary. We note that, by failing to brief the issue, the mother has abandoned any contention in appeal No. 1 concerning the modification of child support (see Matter of Kirkpatrick v Kirkpatrick, 117 AD3d 1575, 1575-1576 [2014]; Ciesinski v Town of Aurora, 202 AD2d 984, 984 [1994]). We further note that, contrary to the mother’s contention, the court did not abuse its discretion in declining to admit the written report of the forensic examiner in the absence of the expert’s appearance in order to testify, authenticate the report and be subject to cross-examination (see Family Ct Act § 624; see generally Matter of Berrouet v Greaves, 35 AD3d 460, 461 [2006]).
With respect to appeal No. 2, we reject the father’s contention that the order was entered on the mother’s default and is therefore not appealable. Although the mother did not appear at the hearing, the order does not recite that it was entered on default, no application was made for a default, and the mother’s attorney appeared at the hearing (cf. Matter of Bradley M.M. [Michael M.—Cindy M.], 98 AD3d 1257, 1257 [2012]; see generally Matter of Rosecrans v Rosecrans, 292 AD2d 817, 817 [2002]; Matter of Williams v Lewis, 269 AD2d 841, 841 [2000]). We thus conclude that this appeal is properly before us. However, inasmuch as the order in appeal No. 2 was the direct result of a provision in the amended order in appeal No. 1 that the court had no authority to issue, we reverse the order in appeal No. 2 and dismiss the father’s petition. Present — Smith, J.P., Peradotto, Carni, Valentino and DeJoseph, JJ.