Matter of McCook v Delbrune; Matter of Delbrune v McCook
Attorneys and Parties
Brief Summary
Family law — custody and parental access (visitation) modification; civil contempt; limits on delegating visitation decisions to mental health professionals.
After a hearing, the Family Court denied the father's contempt and custody-modification requests, limited his access to supervised therapeutic visitation, and gave a therapeutic agency discretion over when and how unsupervised visitation would resume and expand.
The Appellate Division struck provisions delegating to the therapeutic agency the authority to determine when therapeutic supervision would cease, when unsupervised access would resume, and to expand/modify the father’s access.
Courts cannot delegate the ultimate determination of visitation to mental health professionals; conditioning future access on a therapeutic agency’s approval is improper (citing Zafran v Zafran; Grisanti v Grisanti; Matter of Lopez v Neira). The contempt denial and the imposition of therapeutic supervised access were otherwise supported by the record, including the mother’s inability-to-comply defense under Judiciary Law § 753(A)(3) [authorizes punishment for civil contempt upon showing of a clear court order, knowledge, disobedience, and resulting prejudice].
Background
The parties divorced in 2018 under a stipulation giving the mother sole legal and residential custody and the father unsupervised parenting time on alternate weekends, two weekday evenings, and certain holidays. In 2023, the father sought civil contempt against the mother for alleged violations of his access rights and moved to modify custody to award him sole custody. The mother filed to modify parental access. After a five-day hearing and in camera interviews, the Family Court ruled.
Lower Court Decision
The Family Court denied the father’s civil contempt motion and his request to change custody, found a modification of access warranted in the children’s best interests, suspended the father’s unsupervised schedule, required supervised therapeutic parental access, and authorized a therapeutic agency to determine when supervision would end, when unsupervised access would resume, and to expand/modify access.
Appellate Division Reversal
Modified on the law by deleting the provisions delegating authority to the therapeutic agency to determine the end of therapeutic supervision, to reinstate unsupervised access, and to expand/modify the father’s access. As modified, the order was affirmed. The court deferred to the Family Court’s credibility assessments, upheld denial of contempt based on the mother’s demonstrated inability to comply, found no basis to change custody, and held supervised therapeutic access was supported because unsupervised access would be detrimental.
Legal Significance
Reaffirms that while courts may impose therapeutic supervised visitation when necessary for a child’s best interests, they may not delegate the ultimate visitation determinations—such as termination of supervision or expansion of access—to mental health professionals. Clarifies application of civil contempt under Judiciary Law § 753(A)(3) [requires a clear order, knowledge, disobedience, and prejudice; once shown, the alleged contemnor may defend by proving inability to comply], and underscores deference to Family Court best-interests findings.
Therapeutic supervised visitation can be ordered and maintained, but a court must retain control over when and how visitation transitions occur; decisions cannot be outsourced to a therapeutic provider.