The Second Department determined father’s in-court actions during mother’s testimony did not provide a sufficient basis for the denial of visitation to father. In addition, the Second Department found that Family Court improperly conditioned future visitation by father upon the results of drug screenings and a mental health evaluation:
… Family Court’s determination to deny the father visitation with the parties’ children is not supported by a sound and substantial basis in the record. ” [V]isitation is a joint right of the noncustodial parent and of the child'” … . “As a general rule, some form of visitation by the noncustodial parent is always appropriate, absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent in some manner has forfeited his or her right to such access'”… .
Here, the Family Court improperly based its determination to deny the father parental access upon the father’s in-court demeanor … , including his inability “to control his temper in open Court” and an instance in which he called the mother “a liar” as she testified. However, no correlation was made between the father’s in-court demeanor and any detrimental effect on the children … . * * *
The Family Court also erred in directing the father to submit to random drug and alcohol screens, test negative, and undergo a comprehensive mental health evaluation as conditions of future visitation. “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” … . A court may also “direct a party to submit to counseling or treatment as a component of a visitation or custody order” … . A court may not, however, ” order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights'” … . Matter of Gonzalez v Ross, 2016 NY Slip Op 04413, 2nd Dept 6-8-16
FAMILY LAW (FAMILY COURT SHOULD NOT HAVE DENIED FATHER VISITATION BASED UPON FATHER’S BEHAVIOR WHEN MOTHER TESTIFIED; FUTURE VISITATION SHOULD NOT HAVE BEEN CONDITIONED UPON DRUG SCREENINGS AND A MENTAL HEALTH EVALUATION)/VISITATION (FAMILY COURT SHOULD NOT HAVE DENIED FATHER VISITATION BASED UPON FATHER’S BEHAVIOR WHEN MOTHER TESTIFIED; FUTURE VISITATION SHOULD NOT HAVE BEEN CONDITIONED UPON DRUG SCREENINGS AND A MENTAL HEALTH EVALUATION)