Matter of Sandra C. v Enrique M.
2012 NY Slip Op 01351 [92 AD3d 577]
February 23, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 28, 2012


In the Matter of Sandra C., Appellant,
v
Enrique M., Respondent.

[*1] Dora M. Lassinger, East Rockaway, for appellant.

Louise Belulovich, New York, for respondent.

Tamara A. Steckler, The Legal Aid Society, New York (Elana Roffman of counsel), attorney for the child.

Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about March 25, 2011, which, upon respondent's motion to modify an order of visitation, same court and Judge, entered on or about May 24, 2010, suspended petitioner's visitation "until such time as she can provide evidence of individual counseling to address her inability to communicate with [respondent] without hostility," unanimously reversed, on the law, without costs, and the matter remitted for further proceedings consistent herewith before a different Judge.

Family Court erred in modifying the May 24, 2010 order of visitation without first conducting a full evidentiary hearing to determine whether there had been a subsequent change in circumstances and whether modification was in the child's best interests (see Matter of Santiago v Halbal, 88 AD3d 616 [2011]; Family Ct Act § 467 [b] [ii]). Moreover, the court lacked the authority to condition the mother's continued visitation upon her undergoing therapy (Schneider v Schneider, 127 AD2d 491, 495 [1987], affd on other grounds sub nom. Paul B.S. v Pamela J.S., 70 NY2d 739 [1987]; Matter of Smith v Dawn F.B., 88 AD3d 729, 730 [2011], lv dismissed 18 NY3d 855[*2] [2011]; Matter of Saggese v Steinmetz, 83 AD3d 1144, 1145 [2011], lv denied 17 NY3d 708 [2011]; Matter of Vieira v Huff, 83 AD3d 1520, 1522 [2011]). Concur—Mazzarelli, J.P., Catterson, Renwick, Abdus-Salaam and Manzanet-Daniels, JJ.