        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

408
CAF 15-01737
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF ANTHONY ALLEN,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TAMARA BOSWELL, RESPONDENT-RESPONDENT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR PETITIONER-APPELLANT.

TANYA J. CONLEY, ATTORNEY FOR THE CHILDREN, ROCHESTER.


     Appeal from an order of the Family Court, Monroe County (Thomas
W. Polito, R.), entered September 2, 2015 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, directed
that petitioner’s visitation with his children be supervised.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by striking the provision requiring
petitioner to complete a parenting class as a prerequisite for
modification of visitation and substituting therefor a provision
directing that petitioner comply with that condition as a component of
supervised visitation, and as modified the order is affirmed without
costs.

     Memorandum: In this proceeding pursuant to Family Court Act
article 6, petitioner father appeals from an order that, inter alia,
modified a prior custody and visitation order by directing that he
have supervised visitation with the parties’ three children and
ordering him to attend a parenting class. We reject the father’s
contention that respondent mother failed to establish a change in
circumstances sufficient to warrant an inquiry into the best interests
of the children (see generally Matter of McClinton v Kirkman, 132 AD3d
1245, 1245). Although Family Court failed to make an express finding
that there was a change in circumstances, we have the authority to
“review the record to ascertain whether the requisite change in
circumstances existed” (Matter of Curry v Reese, 145 AD3d 1475, 1475
[internal quotation marks omitted]). A change in circumstances has
been found to exist when an incident of domestic violence occurs in
the children’s presence (see Matter of Jeremy J.A. v Carley A., 48
AD3d 1035, 1036; see also Matter of Schieble v Swantek, 129 AD3d 1656,
1657), or when the parties are so unable to communicate without
hostility that custody exchanges “resulted in disagreements that
required [the] intervention” of others (Matter of Kylene FF. v Thomas
                                 -2-                           408
                                                         CAF 15-01737

EE., 137 AD3d 1488, 1489-1490). Here, the mother’s undisputed
testimony established that, the last time she met the father to
exchange the children, he physically assaulted her in the children’s
presence such that persons in a nearby parking lot had to intervene.
We therefore conclude that the mother established the requisite change
in circumstances (see generally Curry, 145 AD3d at 1475).

     We reject the father’s further contention that the court’s
determination that supervised visitation was in the best interests of
the children lacks a sound and substantial basis in the record (see
generally Matter of Procopio v Procopio, 132 AD3d 1243, 1244, lv
denied 26 NY3d 915; Matter of Creek v Dietz, 132 AD3d 1283, 1284, lv
denied 26 NY3d 914). The record establishes that the father committed
acts of domestic violence against the mother in the children’s
presence and that he demonstrated poor impulse control during trial.
Thus, although there is no evidence in the record that the father
physically harmed the children, “the record provides no basis to
disturb Family Court’s conclusion that limiting [the father] to
supervised visitation was in the child[ren]’s best interest[s]”
(Matter of Chilbert v Soler, 77 AD3d 1405, 1406, lv denied 16 NY3d
701; see generally Fox v Fox, 177 AD2d 209, 210).

     We agree with the father, however, that the court erred to the
extent that it ordered that future modification of the father’s
visitation is conditioned on completion of a parenting class.
“[A]lthough a court may include a directive to obtain counseling as a
component of a custody or visitation order, the court does not have
the authority to order such counseling as a prerequisite to custody or
visitation” (Matter of Ordona v Cothern, 126 AD3d 1544, 1546 [internal
quotation marks omitted]). Thus, “the court lack[s] the authority to
condition any future application for modification of [a parent’s]
visitation on her [or his] participation in . . . counseling” (id.).
Nevertheless, the court may order that a parent’s completion of
counseling and compliance therewith “would constitute a substantial
change of circumstances for any future petition for modification of
the order” (Matter of Cramer v Cramer, 143 AD3d 1264, 1265, lv denied
28 NY3d 913), provided that “[n]othing in the order prevents the
[parent] from supporting a modification petition with a showing of a
different change of circumstances” (id.). We therefore modify the
order by striking the provision requiring the father to complete a
parenting class as a prerequisite for modification of visitation and
substituting therefor a provision directing that he comply with that
condition as a component of supervised visitation.




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
