SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
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CAF 15-00187
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.
IN THE MATTER OF MICHAEL C. WAITE,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
MALLORY J. CLANCY, RESPONDENT-APPELLANT.
MICHELLE A. COOKE, CORNING, FOR RESPONDENT-APPELLANT.
CHRISTINE M. VALKENBURGH, ATTORNEY FOR THE CHILD, BATH.
Appeal from an order of the Family Court, Steuben County (Gerard
Alonzo, J.H.O.), entered May 16, 2014 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, granted
sole legal custody and physical placement of the parties’ child to
petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the conditions imposed
with respect to any future application for resumption of visitation
and as modified the order is affirmed without costs.
Memorandum: Respondent mother appeals from an order that awarded
petitioner father sole custody and placement of the parties’ child and
suspended visitation between the mother and the child “until she
engages successfully in mental health and drug and alcohol
evaluations, and . . . recommended treatment, and upon successful
completion of [the] same is reserved the right to file a
[m]odification.” Contrary to the mother’s contention, Family Court’s
determination to suspend her visitation is supported by a sound and
substantial basis in the record inasmuch as the evidence presented at
the hearing established that such visitation was detrimental to the
child’s welfare (see Matter of Christina F.F. v Stephen T.C., 48 AD3d
1112, 1113, lv denied 10 NY3d 710). We agree with the mother,
however, that the court lacked authority to condition the resumption
of visitation upon her completion of mental health and drug and
alcohol evaluations and compliance with all treatment recommendations
(see Matter of Hameed v Alatawaneh, 19 AD3d 1135, 1136; Matter of
Davenport v Ouweleen, 5 AD3d 1079, 1079-1080). We therefore modify
the order accordingly. Finally, as we similarly concluded in the
mother’s related appeal (Matter of VanSkiver v Clancy, 128 AD3d 1408,
1408-1409), the court did not abuse its discretion in denying her
attorney’s request for an adjournment and in holding the hearing in
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CAF 15-00187
her absence.
Entered: February 5, 2016 Frances E. Cafarell
Clerk of the Court