Thursday, May 5, 2016

VISITATION ISSUES WITH DRUGS AND MENTAL HEALTH



Matter of Waite v Clancy 2016 NY Slip Op 00793 Decided on February 5, 2016 Appellate Division, Fourth Department:

"Memorandum: Respondent mother appeals from an order that awarded petitioner father sole custody and placement of the parties' child and suspended visitation between the mother and the child "until she engages successfully in mental health and drug and alcohol evaluations, and . . . recommended treatment, and upon successful completion of [the] same is reserved the right to file a [m]odification." Contrary to the mother's contention, Family Court's determination to suspend her visitation is supported by a sound and substantial basis in the record inasmuch as the evidence presented at the hearing established that such visitation was detrimental to the child's welfare (see Matter of Christina F.F. v Stephen T.C., 48 AD3d 1112, 1113, lv denied 10 NY3d 710). We agree with the mother, however, that the court lacked authority to condition the resumption of visitation upon her completion of mental health and drug and alcohol evaluations and compliance with all treatment recommendations (see Matter of Hameed v Alatawaneh, 19 AD3d 1135, 1136; Matter of Davenport v Ouweleen, 5 AD3d 1079, 1079-1080). We therefore modify the order accordingly. Finally, as we similarly concluded in the mother's related appeal (Matter of VanSkiver v Clancy, 128 AD3d 1408, 1408-1409), the court did not abuse its discretion in denying her attorney's request for an adjournment and in holding the hearing in
her absence."

Note that although the Appellate Division held that "the court lacked authority to condition the resumption of visitation upon her completion of mental health and drug and alcohol evaluations and compliance with all treatment recommendations", nevertheless, the suspension of visitation was upheld. Thus, the mother will face this issue - if she wishes to resume visitation by petition in the future and does not engage in any treatment for her mental health and substance abuse issues, will the court still hold that visitation is detrimental to the child's welfare because there has been no change in circumstances?

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