Battista v. Battista

294 A.D.2d 941, 741 N.Y.S.2d 782, 2002 N.Y. App. Div. LEXIS 4624

Opinion

—Appeal from an order of Family Court, Erie County (Battle, J.), entered February 28, 2001, which granted petitioner supervised visitation with the parties’ children.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Family Court, Erie County, for further proceedings on the petition.

Memorandum: On appeal from an order granting petitioner father supervised visitation with the parties’ two minor children, the Law Guardian contends that Family Court improperly delegated to a mental health professional its authority to determine issues involving the best interests of the children. We agree. The order provides for supervised visitation with a mental health professional “for a period of time that supervision may be required.” The parties stipulated that, whatever the mental health professional recommends, “that’s what the parties will do.” Such delegation is improper (see Wills v Wills, 283 AD2d 1023, 1024; Matter of Fisk v Fisk, 274 AD2d 691, 693; Matter of Henrietta D. v Jack K., 272 AD2d 995). We therefore reverse the order and remit the matter to Family Court, Erie County, for further proceedings on the petition. Present—Pine, J.P., Hayes, Wisner, Scudder and Kehoe, JJ.