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

849
CAF 14-02047
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF JACKIE L. MICKLE,
PETITIONER-APPELLANT,

                    V                              MEMORANDUM AND ORDER

MICHAEL P. MICKLE, RESPONDENT-RESPONDENT.


ROY G. FRANKS, MARION, FOR PETITIONER-APPELLANT.

DAVID E. CODDINGTON, ATTORNEY FOR THE CHILDREN, HORNELL.


     Appeal from an order of the Family Court, Allegany County (Thomas
P. Brown, J.), entered October 14, 2014 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, awarded sole
custody of the children to respondent.

     It is hereby ORDERED that the order so appealed from   is
unanimously modified on the law by striking the provision   requiring
petitioner to participate in counseling as a prerequisite   for seeking
visitation, and as modified the order is affirmed without   costs.

     Memorandum: Petitioner mother appeals from an order granting
respondent father sole custody of the children. We reject the
mother’s contention that she was denied effective assistance of
counsel. The mother failed to “demonstrate the absence of strategic
or other legitimate explanations for counsel’s alleged shortcomings”
(Matter of Brown v Gandy, 125 AD3d 1389, 1390 [internal quotation
marks omitted]). We agree with the mother, however, that Family Court
erred in requiring the mother to “actively engage[]” in individual
counseling before seeking visitation with the children (see Matter of
Ordona v Cothern, 126 AD3d 1544, 1546; Matter of Vieira v Huff, 83
AD3d 1520, 1522). “Although 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 Avdic v Avdic, 125 AD3d 1534,
1535). We therefore modify the order accordingly.

     The mother’s contention that the court erred in issuing an order
of protection is moot inasmuch as the order has expired by its own
terms (see Matter of Whitney v Judge, 138 AD3d 1381, 1382, lv denied
27 NY3d 911; Matter of Perez v Sepulveda, 60 AD3d 1072, 1073, lv
dismissed 12 NY3d 899). We have considered the mother’s remaining
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                                                         CAF 14-02047

contentions and conclude that they are without merit.




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
