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In the Matter of Edward Grassi, respondent,
v.
Janice Grassi, appellant.

(Proceeding No. 1);

In the Matter of Janice Grassi, appellant,
v.
Edward Grassi, respondent.

(Proceeding No. 2)


SUPREME COURT OF NEW YORK,

APPELLATE DIVISION, SECOND DEPARTMENT


April 4, 2006, Decided


Grassi v. Grassi

28 A.D.3d 482; 812 N.Y.S.2d 638


COUNSEL:

Amy L. Colvin, Halesite, N.Y., for appellant.

Lawrence A. Weinreich, Plainview, N.Y., for respondent.

Jill C. Stone, Forest Hills, N.Y., Law Guardian for the daughter.


JUDGES: GLORIA GOLDSTEIN, J.P., DANIEL F. LUCIANO, REINALDO E. RIVERA, STEVEN W. FISHER, JJ. GOLDSTEIN, J.P., LUCIANO, RIVERA and FISHER, JJ., concur.


 DECISION & ORDER


 In related child custody proceedings pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from stated portions of an order of the Family Court, Nassau County (Eisman, J.), dated September 14, 2004, which, inter alia, without a hearing, granted sole custody of the parties' daughter to the father, denied her visitation with the daughter and, in effect, conditioned her further petition for supervised visitation upon her ability to demonstrate, among other things, that she maintained sobriety, regularly attended therapy sessions, and underwent a complete psychiatric in-depth extensive evaluation.


 ORDERED that the order is modified, on the law, by deleting the provision thereof, in effect, conditioning the mother's further petition for supervised visitation with the daughter upon her ability to demonstrate, among other things, that she maintained sobriety, regularly attended therapy sessions, and underwent a complete psychiatric in-depth extensive evaluation; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.


 A parent seeking a change in custody is not automatically entitled to a hearing, but must make some evidentiary showing sufficient to warrant a hearing (see Matter of Madden v Cavanaugh, 307 A.D.2d 266, 761 N.Y.S.2d 874; Matter of Johnson v Semple, 273 A.D.2d 311, 708 N.Y.S.2d 476). Here, the mother failed to make such a showing. In any event, the Family Court possessed sufficient information to render an informed determination on custody and visitation, without a hearing, consistent with the best interests of the child (see Matter of Williams v O'Toole, 4 A.D.3d 371, 771 N.Y.S.2d 546; Matter of Smith v Molody-Smith, 307 A.D.2d 364, 762 N.Y.S.2d 818). The court presided over the parties' extensive court appearances, spanning approximately two years, and was intimately familiar with their situation, including the mother's repeated denial of her alcohol problem and the daughter's physical manifestations of her discomfort and anxiety on visitation days. The court conducted an in camera interview with the daughter and relied upon the reports of the Law Guardian and the Department of Probation. Accordingly, the court providently exercised its discretion in discontinuing the mother's supervised visitation with the daughter and declining to conduct a hearing on the issues of custody and visitation.


 However, we agree with the mother's contention that it was improper for the Family Court to bar her from petitioning for visitation without first demonstrating "that she has maintained sobriety for a significant period of time; maintained regular therapy sessions; undergone a complete psychiatric in-depth extensive evaluation; and, if prescribed medication, she has complied and taken medication as directed" (see Matter of Williams v O'Toole, supra). Although the court may, in appropriate circumstances, require a party to obtain counseling and treatment as a component of a custody or visitation order (see Matter of Irwin v Schmidt, 236 A.D.2d 401, 653 N.Y.S.2d 627; Landau v Landau, 214 A.D.2d 541, 625 N.Y.S.2d 239; Matter of Remillard v Luck, 2 A.D.3d 1179, 768 N.Y.S.2d 714; Matter of Mongiardo v Mongiardo, 232 A.D.2d 741, 649 N.Y.S.2d 45), it has no authority to compel a parent to undergo therapy as a condition to a future application for custody or visitation (see Pudalov v Pudalov, 308 A.D.2d 524, 764 N.Y.S.2d 831; In the Matter of DeJesus v Tinoco, 267 A.D.2d 308, 699 N.Y.S.2d 905).


 The mother's remaining contention is without merit.


 GOLDSTEIN, J.P., LUCIANO, RIVERA and FISHER, JJ., concur.






The case of Grassi v. Grassi is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Grassi may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Grassi v. Grassi is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.


If you have any questions or comments, please feel free to contact Mr. Barics at lawyer@jdbar.com or (631) 864-2600. For more articles and information, please visit www.jdbar.com


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