Davenport v. Ouweleen

Appeal from an order of the Family Court, Monroe County (Ann Marie Taddeo, J.), entered January 14, 2002. The order, inter alia, granted petitioner’s cross petition for sole custody of the parties’ child. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the condition with respect to any future application for resumption of visitation and/or communication and as modified the order is affirmed without costs. Memorandum: Respondent appeals from an order that granted petitioner’s cross petition for sole custody of the parties’ child and suspended visitation and communication between respondent and the child. Contrary to the contention of respondent, Family Court properly suspended visitation between respondent and the child. The evidence establishes that visitation is detrimental to the child’s welfare (see Matter of Mallory v Mashack, 266 AD2d 907 [1999]). We agree with respondent, however, that the court lacked the 1080 authority to condition any future application for resumption of visitation and/or communication upon his completion of a mental health evaluation and compliance with any and all treatment recommendations (see Murek v Murek [appeal No. 2], 292 AD2d 839, 840 [2002]). We therefore modify the order by vacating that condition. We have considered respondent’s remaining contention and conclude that it lacks merit. Present—Pine, J.P., Wisner, Scudder, Kehoe and Lawton, JJ.