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FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO DETERMINE PARENTAL ACCESS TO THE PARTIES AND SHOULD NOT HAVE MADE FINDINGS IN THE ABSENCE OF A HEARING (SECOND DEPT).

The Second Department, reversing and remitting the matter to Family Court, determined the court should not have delegated its authority to determine parental access to the parties and should not have made findings without a hearing:

A court may not delegate its authority to determine parental access to either a parent or a child … . While a child’s views are to be considered in determining custody or parental access, they are not determinative … . An access provision which is conditioned on the desires of the children tends to defeat the right of parental access  … . Here, the Family Court determined that it would not compel either child to visit with the mother. Because the order appealed from effectively conditions the mother’s parental access on the children’s wishes and leaves the determination as to whether there should be access at all to the children, it must be set aside … . The Family Court made its determination based only upon its review of the papers, the in camera interviews, and the colloquy with the unrepresented parties, which occurred in the absence of the attorney for the children. The court did not conduct a hearing, did not direct a forensic examination, and did not seek information from the clinicians involved in the lapsed therapeutic visits. Although there are indications in the record that the mother’s parenting skills may be less than ideal, and she may bear at least some responsibility for her estrangement from the children, the record before us is inadequate to support the Family Court’s refusal to order, at the least, the resumption of therapeutic visits. Furthermore, the court’s finding that the father had done all that he could to encourage the children to visit with the mother was based solely upon the in camera interviews and was not based on any sworn testimony, and the mother was not afforded the opportunity to challenge, either by her own evidence or through cross-examination, the father’s assertions. Matter of Mondschein v Mondschein, 2019 NY Slip Op 06395, Second Dept 8-28-19

 

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