Matter of Richard CC. v Lacey DD.; Attorney for the Children v Richard CC. and Lacey DD.
Attorneys and Parties
Brief Summary
Family law (custody/visitation modification under Family Ct Act article 6 [governs custody and visitation proceedings in Family Court]). Whether a court may suspend a noncustodial parent’s visitation based on children’s refusal and delegate the initiation of therapeutic visitation to a therapist.
Family Court limited the father's parenting time to counseling sessions at the treating therapist’s discretion, effectively suspending all other visitation, and dismissed the father’s violation petitions.
The suspension of the father's visitation outside therapeutic sessions and the delegation of visitation control to a therapist.
The record did not provide compelling reasons and substantial evidence that visitation would be detrimental to the children; the court improperly delegated its authority to a therapist and failed to set a definitive schedule. The court also inadequately developed the record regarding the alleged sexual abuse by the mother’s boyfriend and its impact.
Background
The unmarried parents share two daughters (born 2009 and 2010). A 2019 consent order provided shared physical custody with significant time and phone contact for the father; the mother had sole legal custody. In 2022, the father’s petition for sole legal custody was dismissed, but his violation petition led to an admonition of the mother. In 2023–2024, the father filed enforcement, modification, and violation petitions; the Attorney for the Children (AFC) sought to suspend the father’s parenting time; the parties agreed to a temporary order providing two hours of Saturday visitation in a public place. The mother later sought to suspend the father’s time. Meanwhile, a neglect and abuse proceeding and a criminal case arose from an alleged September 2023 sexual assault of the older child by the mother’s boyfriend. At a July 2024 fact-finding, the court found the children did not want to visit due to the father’s actions and dismissed the father’s violation petitions. The court did not address the father’s pending modification/sole custody order to show cause.
Lower Court Decision
Family Court found a change in circumstances and granted the AFC’s modification petition, limiting the father’s parenting time to counseling sessions at the treating therapist’s discretion and dismissing the father’s violation petitions. The court concluded the children independently chose not to visit due to the father’s conduct.
Appellate Division Reversal
The Appellate Division held that the record did not establish that visitation with the father would be detrimental and that the Family Court improperly delegated its authority to a therapist without setting a definite schedule. The order was modified by reversing the suspension of parenting time and remitting for updated fact-finding before a different judge. The court directed consideration of an updated Lincoln hearing, psychological evaluations under Family Ct Act § 251 [authorizes the court to order psychological/mental health evaluations to aid in custody/visitation determinations], and an investigation under Family Ct Act § 1034(1) [permits a child protective agency investigation into suspected abuse/neglect], and required that any therapeutic visitation be set on a definitive schedule. Pending remittal, the existing order remains temporarily in effect. The father’s ineffective assistance claim was rejected; he received meaningful representation.
Legal Significance
Reaffirms the strong presumption favoring frequent and regular visitation with a noncustodial parent and the need for compelling, substantial evidence of detriment to curtail or suspend it. Clarifies that courts may not delegate control over whether or when visitation occurs to third parties (such as therapists) and must set a concrete visitation schedule. Emphasizes proper record development—especially where allegations of third-party sexual abuse may affect the children’s preferences—and the use of Lincoln hearings and court-ordered evaluations/investigations under Family Ct Act §§ 251 and 1034(1) to inform best interests analyses.
A child’s refusal alone, absent substantial evidence of detriment, cannot justify suspending a parent’s visitation, and a court may not delegate visitation decisions to a therapist; if therapeutic visitation is warranted, the court must set a definite schedule after adequately developing the record.