FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO ORDER VISITATION TO THE THERAPISTS BY CONDITIONING FATHER’S VISITATION ON HIS PARTICIPATION IN THERAPEUTIC COUNSELING (FOURTH DEPT).

The Fourth Department determined Family Court should not have conditioned father’s visitation upon his participation in therapeutic counseling because the condition effectively delegated the court’s power to order visitation to the therapists:

… [T]he court erred in conditioning the father’s visitation upon his participation in therapeutic counseling. “Although a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation”… . Here, the court erred in making participation in counseling the “triggering event” in determining visitation … . We further conclude that the court impermissibly delegated the decision to hold family therapy sessions to the father’s and the child’s therapists and therefore improperly gave the therapists the authority to determine if and when visitation would occur… . We therefore modify the order by vacating the sixth, seventh, and eighth ordering paragraphs, and we remit the matter to Family Court to fashion a specific and definitive schedule for visitation between the father and the subject child. Matter of Rice v Wightman, 2018 NY Slip Op 08813, Fourth Dept 12-21-18