Court Cannot Condition Future Visitation On Parent’s Participation in Counseling or Treatment

The Second Department noted that a court may not condition future visitation upon a parent’s participation in counseling or treatment because such a condition effectively removes control over visitation from the court:

A court hearing a pending proceeding or action involving issues of custody or visitation may properly order a mental health evaluation of a parent, if warranted, prior to making a custody or visitation determination (see Family Ct Act § 251[a]…). In addition, a court may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order … .

However, “a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights” … . The rationale underlying this rule is that “a court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded visitation rights,” a determination that is properly made by the court … . Lajqi v Lajqi, 2015 NY Slip Op 05916, 2nd Dept 7-8-15