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In Re Sandra C., Petitioner-Appellant v. Enrique M.

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 23, 2012

IN RE SANDRA C., PETITIONER-APPELLANT,
v.
ENRIQUE M., RESPONDENT-RESPONDENT.

Matter of Matter of Sandra C. v Enrique M.

Decided on February 23, 2012

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Catterson, Renwick, Abdus-Salaam, Manzanet-Daniels, JJ.

Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about March 25, 2011, which, upon respondent's motion to modify an order of visitation, same court and Judge, entered on or about May 24, 2010, suspended petitioner's visitation "until such time as she can provide evidence of individual counseling to address her inability to communicate with [respondent] without hostility," unanimously reversed, on the law, without costs, and the matter remitted for further proceedings consistent herewith before a different Judge.

Family Court erred in modifying the May 24, 2010 order of visitation without first conducting a full evidentiary hearing to determine whether there had been a subsequent change in circumstances and whether modification was in the child's best interests (see Matter of Santiago v Halbal, 88 AD3d 616 [2011]; FCA § 467[b][ii]). Moreover, the court lacked the authority to condition the mother's continued visitation upon her undergoing therapy (Schneider v Schneider, 127 AD2d 491, 495 [1987], affd on other grounds 70 NY2d 739 [1987]; Matter of Smith v Dawn F.B., 88 AD3d 729, 730 [2011], lv dismissed 2011 NY Slip Op 93103 [2011]; Matter of Saggese v Steinmetz, 83 AD3d 1144, 1145 [2011], lv denied 17 NY3d 708 [2011]; Matter of Vieira v Huff, 83 AD3d 1520, 1522 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 23, 2012

CLERK

20120223

© 1992-2012 VersusLaw Inc.



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