Matter of Richard CC. v Lacey DD.; and Attorney for the Children v Richard CC. and Lacey DD. (Proceeding No. 6)
Attorneys and Parties
Brief Summary
Family law — modification of custody/visitation under Family Ct Act article 6 [governing custody and visitation proceedings] and limits on delegating visitation decisions to third parties.
Family Court dismissed the father's violation petitions, found the mother did not willfully violate prior orders, and granted the attorney for the children (AFC) petition to modify by suspending the father's visitation outside counseling, allowing only therapeutic contact at the therapist’s discretion.
The suspension of the father's parenting time outside therapeutic sessions and the delegation to a therapist to determine if/when visitation would occur.
The record did not provide compelling reasons and substantial evidence that visitation would be detrimental to the children; there is a strong presumption favoring visitation with a noncustodial parent; and the court impermissibly delegated its authority to a therapist instead of establishing a definite schedule.
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 and sole legal custody to the mother. In 2022, Family Court dismissed the father’s bid for sole legal custody but granted his violation petition and admonished the mother. In 2023–2024, multiple petitions followed: father’s enforcement/modification/violation filings; the attorney for the children (AFC) sought to suspend father’s access; and the mother sought to temporarily suspend his parenting time. A temporary order reduced father’s access to two hours each Saturday in a public place. Meanwhile, a neglect/abuse and related criminal proceeding commenced regarding an alleged September 2023 sexual assault by the mother’s boyfriend on the older child. At a July 2024 fact-finding, the father testified to a previously close relationship, denied wrongdoing, and sought reunification via counseling; the mother testified the children refused contact due to their mental health and the father’s interactions and denied coaching or violating orders. Family Court dismissed the father’s violation petitions, granted the AFC’s modification petition, and limited father’s parenting time to therapeutic sessions at a therapist’s discretion.
Lower Court Decision
Family Court (Otsego County) found the mother did not willfully violate the 2019 order, concluded the children chose not to visit the father due to his conduct and their mental health, and modified custody to suspend father’s visitation outside counseling by allowing only therapist-guided contact without a definite schedule. The court did not address the father’s earlier modification petition or his order to show cause for sole custody.
Appellate Division Reversal
The Appellate Division held there was no sound and substantial basis to find visitation with the father detrimental and that the Family Court impermissibly delegated visitation decisions to a therapist. It reversed the suspension of parenting time and remitted for updated fact-finding before a different judge, directing consideration of an updated Lincoln hearing, possible psychological evaluations under Family Ct Act § 251 [permits the court to order psychological/psychiatric examinations and related evaluations], and an investigation into the alleged sexual abuse under Family Ct Act § 1034(1) [allows court-ordered child protective investigation into suspected abuse/neglect]. If therapeutic visitation is required, the court must set a definite schedule. Pending remittal, the terms of the challenged order remain temporarily in effect.
Legal Significance
Reaffirms the strong presumption that visitation with a noncustodial parent is in the child’s best interests and may be curtailed only upon compelling, substantial evidence of harm. Courts must craft concrete, regular visitation schedules and may not delegate visitation decisions to third parties such as therapists. Children’s wishes are relevant but not determinative. Where allegations of abuse by a third party may affect a child’s refusal to visit, the court should consider further investigation and psychological assessment.
Absent compelling proof that visitation is harmful, courts must preserve a noncustodial parent’s access and cannot delegate control over visitation to therapists; any therapeutic visitation must have a clear, definite schedule, and further fact-finding may be required when external factors (e.g., alleged abuse by a caregiver’s partner) may influence a child’s refusal to visit.