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

472
CAF 10-00275
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF LIONEL T. VIEIRA,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DIANE P. HUFF, RESPONDENT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR RESPONDENT-APPELLANT.

DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
PETITIONER-RESPONDENT.

ROBERT L. GOSPER, ATTORNEY FOR THE CHILD, CANANDAIGUA, FOR BENJAMIN H.


     Appeal from an order of the Family Court, Ontario County (Craig
J. Doran, J.), entered January 27, 2010 in a proceeding pursuant to
Family Court Act article 6. The order granted custody of the parties’
child to petitioner.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the condition imposed on
any future application by respondent to modify her visitation and as
modified the order is affirmed without costs.

     Memorandum: Respondent mother appeals from an order that
modified an order pursuant to which the parties had joint custody of
the child, with primary physical placement with the mother. By the
order on appeal, Family Court granted sole legal and physical custody
of the parties’ child to petitioner father, directed that the mother’s
visitation with the child be supervised, and further directed the
mother to obtain mental health counseling before filing an application
to modify her visitation. Based on the record before us, we conclude
that the court properly determined that the father established a
change in circumstances reflecting “ ‘a real need for change to ensure
the best interest[s] of the child’ ” (Matter of Di Fiore v Scott, 2
AD3d 1417, 1417). We further conclude that the award of sole legal
and physical custody to the father is in the best interests of the
child, upon considering the appropriate factors to warrant that award
(see generally Eschbach v Eschbach, 56 NY2d 167, 174; Fox v Fox, 177
AD2d 209). We note in particular that the mental health expert who
evaluated the mother testified that she suffered from a delusional
disorder and was not likely to benefit from therapy because she was
not able to recognize alternative possibilities and explanations for
her delusions, nor was she able to form a trusting bond with her
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                                                         CAF 10-00275

therapist. Although we agree with the mother that the court erred in
awarding temporary custody of the parties’ child to the father during
the course of the evidentiary hearing, that error is of no moment
under the circumstances of this case inasmuch as the record of the
hearing upon its completion fully supports the court’s determination
(see Matter of Darryl B.W. v Sharon M.W., 49 AD3d 1246, 1247).

     We further reject the mother’s contention that the court erred in
directing that her visitation be supervised. Supervised visitation is
a matter left to the sound discretion of the court and will not be
disturbed where, as here, there is a sound and substantial basis in
the record to support such visitation (see Matter of Chilbert v Soler,
77 AD3d 1405, 1406, lv denied 16 NY3d 701). Nor did the court abuse
its discretion in directing that the parties agree to a visitation
schedule, taking into consideration the availability of the person
supervising visitation (cf. Matter of William B.B. v Susan D.D., 31
AD3d 907, 908). We note in any event that the court indicated that it
would assign a visitation schedule in the event that the parties could
not reach an agreement.

     Finally, we agree with the mother that the court lacked the
authority to condition any future application for modification of her
visitation on her participation in mental health counseling (see
Matter of Bray v DeStevens, 78 AD3d 1564, 1565; Matter of Hameed v
Alatawaneh, 19 AD3d 1135, 1136), and we therefore modify the order
accordingly.




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
