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

1361
CAF 13-01515
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF ZINETA AVDIC,
PETITIONER-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

REFIK AVDIC, RESPONDENT-RESPONDENT-APPELLANT.
----------------------------------------------
IN THE MATTER OF REFIC AVDIC,
PETITIONER-RESPONDENT-APPELLANT,

                    V

ZINETA AVDIC, RESPONDENT-APPELLANT-RESPONDENT.
----------------------------------------------
SUSAN B. MARRIS, ESQ., ATTORNEY FOR THE CHILD,
APPELLANT-RESPONDENT.
(APPEAL NO. 1.)


SUSAN B. MARRIS, ATTORNEY FOR THE CHILD, MANLIUS, APPELLANT-RESPONDENT
PRO SE.

SAUNDERS KAHLER, L.L.P., UTICA (JAMES S. RIZZO OF COUNSEL), FOR
PETITIONER-APPELLANT-RESPONDENT AND RESPONDENT-APPELLANT-RESPONDENT.

PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-RESPONDENT-APPELLANT
AND PETITIONER-RESPONDENT-APPELLANT.


     Appeals and cross appeal from an amended order of the Family
Court, Oneida County (Louis P. Gigliotti, A.J.), entered August 12,
2013 in proceedings pursuant to Family Court Act articles 4, 6 and 8.
The amended order, among other things, adjudged that petitioner-
respondent Zineta Avdic had willfully violated a court order and
sentenced her to six weekends in jail and ordered the parties to
enroll in therapeutic counseling.

     It is hereby ORDERED that the amended order so appealed from is
unanimously modified on the law by striking the provision conditioning
the custody of the subject child with petitioner on the participation
of petitioner “and/or” the child in therapeutic counseling and as
modified the amended order is affirmed without costs, and the matter
is remitted to Family Court, Oneida County, for further proceedings in
accordance with the following memorandum: In appeal No. 1,
petitioner-respondent mother and the Attorney for the Child (AFC) each
appeal, and respondent-petitioner father cross-appeals, from an
                                 -2-                          1361
                                                         CAF 13-01515

amended order that, following a hearing on the father’s cross petition
to modify a prior order of custody and visitation, conditioned the
continuation of the mother’s joint custody of the child on, insofar as
relevant to these appeals, the participation of the mother “and/or”
the child in therapeutic counseling. In appeal No. 2, the mother and
the AFC each appeal from an order that, following a hearing, modified
the amended order in appeal No. 1 and awarded the father sole custody
on the ground that the subject child failed and/or refused to attend
therapeutic counseling.

     We reject the contention of the father that the appeals of the
mother and AFC from the amended order in appeal No. 1 were rendered
moot by the subsequent order in appeal No. 2. The rights of the
parties, and the best interests of their child, will be directly
affected by the determination of appeal No. 1 and the interest of the
parties and their child is an immediate consequence of that order (see
generally Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714).
Furthermore, as discussed herein, Family Court was without authority
to issue the order in appeal No. 2, and thus it cannot be said that
the order in appeal No. 2 rendered moot the order in appeal No. 1.

     In appeal No. 1, as the father correctly concedes, the court
erred in conditioning the mother’s continued joint custody upon
participation of the mother and/or the child in therapeutic
counseling. 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 (see Matter of Sweet v Passno, 206 AD2d 639,
640). Here, the court erred in making the failure or refusal to
participate in counseling the dispositive, triggering event in
determining custody (see Matter of Vieira v Huff, 83 AD3d 1520, 1522;
Gadomski v Gadomski, 256 AD2d 675, 677; Matter of Dennison v Short,
229 AD2d 676, 677). We therefore modify the amended order by striking
the provision transferring sole custody to the father in the event
that the mother and/or the child failed to attend and fully and
meaningfully participate in the therapeutic counseling sessions
ordered by the court.

     With respect to appeal No. 1, we note that the court properly
determined that there had been a sufficient change in circumstances to
warrant a determination concerning the best interests of the child
(see Matter of Darla N. v Christine N. [appeal No. 2], 289 AD2d 1012,
1012). Nevertheless, although the court’s determination that the
mother had engaged in parental alienation behavior raised a strong
probability she is unfit to act as a custodial parent (see Matter of
Amanda B. v Anthony B., 13 AD3d 1126, 1127), the court failed to make
any explicit findings concerning the relevant factors that must be
considered in making a best interests determination so as to resolve
the petition and cross petition (see Eschbach v Eschbach, 56 NY2d 167,
172-173; Fox v Fox, 177 AD2d 209, 210). We therefore remit the matter
to Family Court for a determination on the petition and cross
petition, including specific findings, as to the best interests of the
child, following an additional hearing if necessary. We note that, by
failing to brief the issue, the mother has abandoned any contention in
                                 -3-                          1361
                                                         CAF 13-01515

appeal No. 1 concerning the modification of child support (see Matter
of Kirkpatrick v Kirkpatrick, 117 AD3d 1575, 1575-1576; Ciesinski v
Town of Aurora, 202 AD2d 984, 984). We further note that, contrary to
the mother’s contention, the court did not abuse its discretion in
declining to admit the written report of the forensic examiner in the
absence of the expert’s appearance in order to testify, authenticate
the report and be subject to cross-examination (see Family Ct Act §
624; see generally Matter of Berrouet v Greaves, 35 AD3d 460, 461).

     With respect to appeal No. 2, we reject the father’s contention
that the order was entered on the mother’s default and is therefore
not appealable. Although the mother did not appear at the hearing,
the order does not recite that it was entered on default, no
application was made for a default, and the mother’s attorney appeared
at the hearing (cf. Matter of Bradley M.M. [Michael M.–Cindy M.], 98
AD3d 1257, 1257; see generally Matter of Rosecrans v Rosecrans, 292
AD2d 817, 817; Matter of Williams v Lewis, 269 AD2d 841, 841). We
thus conclude that this appeal is properly before us. However,
inasmuch as the order in appeal No. 2 was the direct result of a
provision in the amended order in appeal No. 1 that the court had no
authority to issue, we reverse the order in appeal No. 2 and dismiss
the father’s petition.




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
