S. WHITE, WILLIAMSVILLE, FOR DEFENDANT-APPELLANT.
P. PIERI, BUFFALO, FOR PLAINTIFF-RESPONDENT.
A. ALOI, ATTORNEY FOR THE CHILDREN, BUFFALO.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND SCUDDER, JJ.
from an order of the Supreme Court, Erie County (Frederick J.
Marshall, J.), entered August 13, 2015. The order, inter
alia, denied the motion of defendant to compel plaintiff to
engage in collaborative counseling.
hereby ORDERED that the order so appealed from is unanimously
modified on the law by granting defendant's motion dated
October 8, 2014 to the extent of compelling plaintiff to
cooperate with collaborative counseling, and as modified the
order is affirmed without costs, and the matter is remitted
to Supreme Court, Erie County, for further proceedings in
accordance with the following memorandum: Plaintiff mother
and defendant father entered into a stipulation in October
2011 pursuant to which they agreed that the mother would have
sole custody of their two daughters, and the father would
have two hours a week of supervised visitation, with the
eventual goal of unsupervised visitation. The parties
stipulated that the parties and the children would all engage
in individual counseling, and at some point they would engage
in family therapy with one professional. The parties
stipulated that the mother's positive support for the
father's parental role, and the mother's
participation in the therapy, were essential for any
meaningful progress to occur. The father began supervised
visits but they ended when, according to the father, the
children decided they no longer wanted to go on the visits.
The father sought to have the parties engage in family
counseling, which the mother resisted. It appears that
Supreme Court ordered the parties to engage in such
counseling with a named counselor, but after one visit with
the counselor, the children refused to attend any more
sessions, and the mother cancelled the next scheduled
appointment with the counselor and said that the children
wanted to talk with the judge. By notice of motion dated
October 8, 2014, the father moved, inter alia, to compel the
mother to cooperate with collaborative counseling and, if the
children continued to refuse to visit with him, to be
relieved of his child support obligation. After reading the
submissions of the parties and conducting an in camera
interview with the children, the court denied the
father's motion in its entirety and concluded that
"[t]o force the situation" between the father and
the children would not be in their best interests. In appeal
No. 1, the father appeals from the order denying that motion
(hereafter, motion), as well as a separate motion concerning
insurance coverage that is not at issue on appeal. In appeal
No. 2, the father appeals from a subsequent order granting
the mother's application for attorney's fees.
first appeal No. 1, we begin by repeating the well-settled
principle that visitation with a noncustodial parent is
presumed to be in a child's best interests (see
Matter of Granger v Misercola, 21 N.Y.3d 86, 90) and,
thus, there is "a rebuttable presumption that a
noncustodial parent will be granted visitation"
(Matter of Merkle v Henry, 133 A.D.3d 1266, 1268).
That presumption may be rebutted when it is shown, by a
preponderance of the evidence, that visitation would be
harmful to the child (see Granger, 21 N.Y.3d at 92;
Matter of Tuttle v Mateo [appeal No. 3], 121 A.D.3d
1602, 1604). Here, the father has not had even supervised
visitation with the children for several years. Although the
children expressed their wish not to have visitation with the
father, there is no showing on this record that collaborative
counseling or even supervised visitation would be harmful to
them or contrary to their best interests (see Bubbins v
Bubbins, 136 A.D.2d 672, 672). The record establishes
that the mother has made little to no effort to encourage the
relationship between the father and the children, and the
father submitted evidence supporting an inference that the
mother was alienating the children from the father. In
denying the father's motion in its entirety, the court
improperly allowed the children essentially to dictate
whether visits would ever occur with the father (see
William-Torand v Torand, 73 A.D.3d 605, 606; Matter
of Casolari v Zambuto, 1 A.D.3d 1031, 1031; Sturm v
Lyding, 96 A.D.2d 731, 731-732).
therefore modify the order in appeal No. 1 by granting the
father's motion to the extent that he seeks to compel the
mother to cooperate with collaborative counseling, and we
remit the matter to Supreme Court for further proceedings
before a different justice to fashion an appropriate order
consistent with this decision, including collaborative
counseling and supervised visitation. In the event that the
mother or the children continue to refuse to participate in
collaborative counseling or attend visitation, the court
should consider whether an order of contempt or an order
relieving the father of his child support obligation with
respect to the older child would be appropriate (see
Labanowski v Labanowski, 4 A.D.3d 690, 691, 694-696).
respect to appeal No. 2, we agree with the father that the
court abused its discretion in granting the mother's
application for attorney's fees pursuant to Judiciary Law
§ 237 (b). The father was the less monied spouse and,
contrary to the conclusion of the court, his motion had merit
(see generally Johnson v ...