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

13
CA 16-00246
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND SCUDDER, JJ.


LISA MARIE GUY, PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

ERIC GUY, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


JUSTIN S. WHITE, WILLIAMSVILLE, FOR DEFENDANT-APPELLANT.

JOHN P. PIERI, BUFFALO, FOR PLAINTIFF-RESPONDENT.

CHERYL A. ALOI, ATTORNEY FOR THE CHILDREN, BUFFALO.


     Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered August 13, 2015. The order, inter alia,
denied the motion of defendant to compel plaintiff to engage in
collaborative counseling.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting defendant’s motion dated
October 8, 2014 to the extent of compelling plaintiff to cooperate
with collaborative counseling, and as modified the order is affirmed
without costs, and the matter is remitted to Supreme Court, Erie
County, for further proceedings in accordance with the following
memorandum: Plaintiff mother and defendant father entered into a
stipulation in October 2011 pursuant to which they agreed that the
mother would have sole custody of their two daughters, and the father
would have two hours a week of supervised visitation, with the
eventual goal of unsupervised visitation. The parties stipulated that
the parties and the children would all engage in individual
counseling, and at some point they would engage in family therapy with
one professional. The parties stipulated that the mother’s positive
support for the father’s parental role, and the mother’s participation
in the therapy, were essential for any meaningful progress to occur.
The father began supervised visits but they ended when, according to
the father, the children decided they no longer wanted to go on the
visits. The father sought to have the parties engage in family
counseling, which the mother resisted. It appears that Supreme Court
ordered the parties to engage in such counseling with a named
counselor, but after one visit with the counselor, the children
refused to attend any more sessions, and the mother cancelled the next
scheduled appointment with the counselor and said that the children
wanted to talk with the judge. By notice of motion dated October 8,
2014, the father moved, inter alia, to compel the mother to cooperate
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                                                           CA 16-00246

with collaborative counseling and, if the children continued to refuse
to visit with him, to be relieved of his child support obligation.
After reading the submissions of the parties and conducting an in
camera interview with the children, the court denied the father’s
motion in its entirety and concluded that “[t]o force the situation”
between the father and the children would not be in their best
interests. In appeal No. 1, the father appeals from the order denying
that motion (hereafter, motion), as well as a separate motion
concerning insurance coverage that is not at issue on appeal. In
appeal No. 2, the father appeals from a subsequent order granting the
mother’s application for attorney’s fees.

     Addressing first appeal No. 1, we begin by repeating the well-
settled principle that visitation with a noncustodial parent is
presumed to be in a child’s best interests (see Matter of Granger v
Misercola, 21 NY3d 86, 90) and, thus, there is “a rebuttable
presumption that a noncustodial parent will be granted visitation”
(Matter of Merkle v Henry, 133 AD3d 1266, 1268). That presumption may
be rebutted when it is shown, by a preponderance of the evidence, that
visitation would be harmful to the child (see Granger, 21 NY3d at 92;
Matter of Tuttle v Mateo [appeal No. 3], 121 AD3d 1602, 1604). Here,
the father has not had even supervised visitation with the children
for several years. Although the children expressed their wish not to
have visitation with the father, there is no showing on this record
that collaborative counseling or even supervised visitation would be
harmful to them or contrary to their best interests (see Bubbins v
Bubbins, 136 AD2d 672, 672). The record establishes that the mother
has made little to no effort to encourage the relationship between the
father and the children, and the father submitted evidence supporting
an inference that the mother was alienating the children from the
father. In denying the father’s motion in its entirety, the court
improperly allowed the children essentially to dictate whether visits
would ever occur with the father (see William-Torand v Torand, 73 AD3d
605, 606; Matter of Casolari v Zambuto, 1 AD3d 1031, 1031; Sturm v
Lyding, 96 AD2d 731, 731-732).

      We therefore modify the order in appeal No. 1 by granting the
father’s motion to the extent that he seeks to compel the mother to
cooperate with collaborative counseling, and we remit the matter to
Supreme Court for further proceedings before a different justice to
fashion an appropriate order consistent with this decision, including
collaborative counseling and supervised visitation. In the event that
the mother or the children continue to refuse to participate in
collaborative counseling or attend visitation, the court should
consider whether an order of contempt or an order relieving the father
of his child support obligation with respect to the older child would
be appropriate (see Labanowski v Labanowski, 4 AD3d 690, 691, 694-
696).

     With respect to appeal No. 2, we agree   with the father that the
court abused its discretion in granting the   mother’s application for
attorney’s fees pursuant to Judiciary Law §   237 (b). The father was
the less monied spouse and, contrary to the   conclusion of the court,
his motion had merit (see generally Johnson   v Chapin, 12 NY3d 461,
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                                                         CA 16-00246

467, rearg denied 13 NY3d 888; Wilson v Wilson, 128 AD3d 1326, 1327).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
