Opinion
July 6, 1992
Appeal from the Supreme Court, Suffolk County (Friedenberg, J.).
Ordered that the order and judgment is modified, on the law, by deleting therefrom the provision which directed that an application by the defendant for a resumption of her visitation rights must be accompanied by proof of ongoing therapy and a therapist's recommendation that visitation be resumed; as so modified, the order and judgment is affirmed, without costs or disbursements.
We find that the court properly awarded sole custody of the parties' two children to the plaintiff and suspended the defendant's visitation rights for a period of at least six months. It was clear that an award of sole custody to the plaintiff was in the children's best interest. The evidence presented at the hearing demonstrated that the defendant was not capable of providing the children with stability and mature parenting, nor was she able to cooperate with the plaintiff to further the children's best interests. The defendant admitted that she knowingly violated the terms of a prior order dated October 13, 1989, entered upon her consent, which awarded the parties joint custody, when she arranged for her daughter's First Holy Communion and took her daughter for an electroencephalogram without the plaintiff's knowledge or consent. In addition, the defendant admitted that she lost her temper and created a scene with the plaintiff and the plaintiff's wife, in the children's presence. The defendant also admitted that, when she had the children, she was unable to return them to the plaintiff on time. Finally, the defendant was either directly or indirectly responsible for the filing of three unfounded child abuse complaints against the plaintiff and his wife. These incidents demonstrate that the defendant is not capable of behaving in a mature and civilized fashion or cooperating with the plaintiff to further the best interests of the children. Under such circumstances, an award of sole custody to the plaintiff was appropriate (see, Braiman v. Braiman, 44 N.Y.2d 584; Bluemke v Bluemke, 155 A.D.2d 574; Trolf v. Trolf, 126 A.D.2d 544).
Further, the defendant's anger and hostility towards the plaintiff caused her to engage in conduct which was clearly detrimental to her children's welfare. The children informed the Judge, during an in camera interview, that the defendant encouraged them to lie about their father and his new wife. The children's statements to the Judge are supported by the fact that all three child abuse charges against the plaintiff and his wife were determined to be unfounded. Thus, since the record provided the court with a sound and substantial basis to conclude that the defendant's visitation would be detrimental to the welfare of the children, the defendant's visitation rights were properly suspended (see, Weiss v. Weiss, 52 N.Y.2d 170; Nacson v. Nacson, 166 A.D.2d 510; Alfano v. Alfano, 151 A.D.2d 530).
However, it is clear that a court may not compel a party to undergo therapy as a precondition for a reapplication for visitation rights (see, Nacson v. Nacson, supra). Thus, the court improperly directed that the defendant's application for a resumption of visitation rights must be accompanied by proof of ongoing therapy and a therapist's recommendation that visitation be resumed.
We have considered the parties' remaining contentions, including those raised by the plaintiff on his cross appeal, and find that they are without merit. Harwood, J.P., O'Brien, Ritter and Copertino, JJ., concur.