Hill v. City of New York 45 F.3d 653 United States 2nd Circuit Court of Appeals
N/A
OUTCOME: Manhattan District Attorney no absolutely immune
HILL v. CITY OF NEW YORK, 45 F.3d 653 United States 2nd Circuit Court of Appeals (2nd Cir. 1995)No. 1664, Docket 93-9343.Decided January 17, 1995. found Manhattan DA was not absolutely immune from suit.... Case was ultimately settled with contribution from all defendants.
The issue in this § 1983 civil rights litigation concerns the precise scope of a local district attorney's immunity from suit. Because a public prosecutor cannot zealously perform the prosecutorial duties of the office if compelled to work under the constant threat of legal reprisals, such official is shielded from liability for civil wrongs by the doctrine of absolute immunity. When this doctrine, necessary to preserve the integrity of the judicial process, shields an alleged egregious and contemptible abuse of official power it is of course very troubling.
Federal Court Second Circuit. Now cited by more than 100 federal court across the Country as precedent defining the line where liability attaches to the acts of prosecutor otherwise shielded without absolute immunity.
Constitutional
VEGA V. FOX U.S. DISTRICT COURT, S.D.N.Y. Civil Rights, Negligence
N/A
OUTCOME: Federal Damage Claim
VEGA V. FOX U.S. DISTRICT COURT, S.D.N.Y. Civil Rights, Negligence,
New York Law Journal March 1, 2006 Judge Scheindlin 3/1/06 NYLJ Decision of the Day 26 page decision USDC, SDNY requiring City an...d Psychiatric facility to defendant individual, and supervisory liability under 42 USC 1983 for injuries at group home facility. A Privately operated residential care center was funded through Medicaid per diem payments, New York State Education Department reimbursements and grants from the New York State Office of Mental Health. The mentally disabled plaintiff, placed in foster care at the center's Young Adult Supportive Living Program (YASL), had received permission to reside in the YASL after his 18th birthday. At a meeting attended by YASL residents and staff, plaintiff's arm was severely broken in a fight with another YASL resident. No staff member or other center employee intervened to stop the fight. The court denied motions by the center and caseworkers to dismiss plaintiff's negligence action. Applying the standard of Brentwood Academy v. Tennessee Secondary School Athletic Association and its progeny, it found that despite the absence of direct state control, there was an issue whether the center and its employees could be considered "state actors" who acted under color of law. Case subsequently settled before Trial with all defendants contributing compensation and attorneys fees.
Family
Commitment of Patrick L., Matter of, 582 N.Y.S.2d 437, 179 A.D.2d 220 (N. Y. A. D. 1 Dept., 1992)
N/A
OUTCOME: Reverse Termination of Parental Rights -return
Commitment of Patrick L., Matter of, 582 N.Y.S.2d 437, 179 A.D.2d 220 (N. Y. A. D. 1 Dept., 1992)
Page 437
582 N.Y.S.2d 437
179 A.D.2d 220
In the Matter of the COMMITMENT OF PATRICK L. McC an...d Darryl
McC., Jr., Dependent Children Under the Age of Eighteen
Years, to the Custody and Guardianship of Abbott House,
pursuant to the provisions of Section 384-b of the Social Services Law,
Rachael L., Respondent-Appellant,
Abbott House, Petitioner-Respondent.
Supreme Court, Appellate Division,
First Department.
April 28, 1992.
[179 A.D.2d 221] Bruce A. Young, New York City, for respondent-appellant.
Terry Milburn, Ryer, for petitioner-respondent.
Timothy J. Bennett, New York City, of counsel (Lenore Gittis, attorney) as Law Guardian for the Children.
Before SULLIVAN, J.P., and MILONAS, KUPFERMAN, ASCH and SMITH, JJ.
KUPFERMAN, Justice.
While we find nothing wrong with the court's findings of permanent neglect based upon the testimony elicited at the August, 1989 fact-finding hearing, such finding requires termination of parental rights only where such disposition is determined to be in the best interests of the child (Matter of Female M., 70 A.D.2d 812, 417 N.Y.S.2d 482).
Given the fact that the dispositional order was entered on respondent mother's default in November 1989, as well as the evidence currently before us of her subsequent and positive change of circumstances, including: her return to New
Page 438
York; the birth of a daughter Amber on August 18, 1990; her care of that child; her successful completion of parenting skills courses; her participation in weekly psychological therapy sessions as well as vocational training; and, her obtaining of permanent suitable housing in November 1990, we feel that a new dispositional hearing should be held at which the best interests of the children can be determined in light of these changed circumstances and any other factors deemed relevant.
At the time of her default in appearing at the dispositional hearing on November 27, 1989, respondent was living in Indiana, where she had moved in early 1986, following the placement of her then two and six year old sons in foster care after a finding of neglect based upon her inability to cope with her situation at the time.
In October 1988, after unsuccessful efforts to reunite the children with their mother in Indiana, petitioner agency commenced these proceedings on the ground that respondent had failed to regularly visit her children or plan for their future. In its fact-finding decision, dated October 31, 1989, the court found that, although respondent loved her children and kept in contact with them, her attempts at compliance with court ordered therapy, parenting skills classes and psychological evaluations were inadequate and that she had failed to plan realistically for her children's futures. In so finding, [179 A.D.2d 222] however, the court acknowledged the difficulties in compliance inherent in respondent's living in Indiana and her then circumstances.
After receiving notice of the dispositional hearing, respondent notified her attorney that she would be unable to attend because, aside from lack of money for travel, she was working two jobs and was afraid she would lose them if she came to New York at that time, one, with Toys R Us, because it was the Christmas season and the other, as a telephone operator, because she had just started it. Her attorney appeared at the dispositional hearing and requested an adjournment for a month or two. The court stated that it was always clear that travel money would be made available, but no request had been made. Further, since respondent seemed to change jobs frequently, the court did not consider that a reason for failing to proceed with the dispositional hearing.
Subsequent to entry of the dispositional order on January 9, 1990, respondent returned to New York permanently on February 15, 199
Child support
Grant v. Grant
N/A
OUTCOME: Reverse and Cancel retro child support arrears
Grant v. Grant (N.Y. App. Div., 2000)
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT
MARCH 30, 2000
First Department, January 2000
Ernst H. Rosenberger,... J.P.
Betty Weinberg Ellerin
Richard W. Wallach
David B. Saxe, JJ.
127
In re Proceeding for Support, etc.,
Alexander Grant, Petitioner-Respondent,
-against-
Virginia Grant, Respondent-Appellant.
Respondent appeals from an order of the Family Court, New York County (Sheldon Rand, J.), entered on or about December 9, 1997, which granted the objections of petitioner to the hearing examiner's findings and decision and awarded him child support arrears.
Brondi Borer, attorney for petitioner-respondent.
Bruce A. Young, attorney for respondent-appellant.
ELLERIN, J.
At issue in this appeal is whether the Family Court erred in overturning the findings of the hearing examiner and finding that respondent-mother failed to establish that petitioner-father had impliedly waived his right to child support.
The parties are the parents of one minor child, Tessa, born on September 3, 1986. They entered into a separation agreement on May 19, 1989, and were divorced on September 21, 1990. The agreement provided for the father to have custody of Tessa and receive from the mother $50 per week in child support. At the time of the separation, Tessa was still nursing, so she lived with the mother all week, and the father saw her on weekends. Even after she stopped nursing, Tessa lived with the mother from Monday to Thursday and occasionally on Sunday, and most summers, for the next several years. The parties lived within a block of each other and both addresses were on file at Tessa's school. Until Tessa was old enough for school, she accompanied the mother on trips to England a few times a year to visit the mother's boyfriend, who resided there. Once Tessa was in school, the mother traveled to England less frequently and took Tessa with her only during school vacations. Since the father worked nights, on occasions when the mother went to England without Tessa, the mother paid for a babysitter to stay with Tessa at the father's house. The mother bought most of Tessa's clothes, shoes, books and toys. She paid no child support to the father.
In June 1995, the parties agreed that Tessa would benefit from spending every night of the school week in the same household. The father had remarried and his wife was at home nights while he worked. He suggested a more structured visitation schedule. The mother filed a petition to enforce visitation access, and in October 1995, a court order of visitation was entered that provided for Tessa to stay with the mother every other weekend and every other Monday evening.
The father then sought enforcement of the weekly $50 in child support and an upward modification of child support. An evidentiary hearing was held before a hearing examiner.[1] The mother testified that she never knew she was required to pay child support. The father and an attorney friend of his drew up the separation agreement, which provided that the father had custody and she could see Tessa any time she wished. They told her there had to be a minimum child support figure in the agreement but that she would not have to pay it. Moreover, she had never been ordered in court to pay the $50 per week.
The mother testified that she and the father had agreed to the de facto shared custody arrangement in lieu of her paying child support. She claimed that the father filed his support petition in revenge for her filing her visitation petition and because they had argued over an inheritance of $10,000 from the mother's maternal grandfather that had been put into a trust for Tessa's education. The father insisted that he be shown the financial records and argued that he should get the money for Tessa's support. The mother's family refused to turn over the money or the documents.
The father denied that there had been any agreement substituting physical custod
Child support
Singer v. Peters
N/A
OUTCOME: Reverse Trial Court increase child support
Singer v. Peters, 726 N.Y.S.2d 97 (A.D. 1 Dept., 2001)
Page 97
726 N.Y.S.2d 97 (A.D. 1 Dept. 2001)
Barbara Singer, etc., Plaintiff-Appellant
v.
Urcil Peters, Defendant-Respondent.
3702-3703...-3704
SUPREME COURT, APPELLATE DIVISION, FIRST JUDICIAL DEPARTMENT
June 12, 2001
Page 98
Bruce A. Young, for plaintiff-appellant,
Jerry Mond, for defendant-respondent.
Sullivan, P.J., Rosenberger, Mazzarelli, Wallach, Buckley, JJ.
Order, Supreme Court, New York County (Marylin Diamond, J.), entered May 22, 2000, which ordered plaintiff-wife to sign a release to Dr. Jutta Weiss so that Dr. Weiss could furnish her notes from a session with plaintiff that took place pursuant to a "so-ordered" stipulation dated November 1, 1999, in which she and defendant agreed to attend therapeutic sessions with Dr. Weiss, unanimously reversed, on the law and the facts, without costs, and the direction vacated. Order, same court and Justice, entered November 1, 2000, which, inter alia, held plaintiff in contempt for failing to abide by the "so-ordered" stipulation, admitted into evidence the notes and testimony of Dr. Weiss, ordered the husband to pay $600 per month in pendente lite child support into an unspecified escrow account, unanimously modified, on the law and the facts, pendente lite child support is increased to $1666.67, the finding of contempt is vacated, the matter remanded for further proceedings, and otherwise affirmed, without costs. Appeal
Page 99
from order, same court and Justice, entered April 18, 2000, which inter alia, dismissed all pending motions and ordered temporary child support to be paid in accordance with the parties' separation agreement, unanimously dismissed, without costs, as moot.
The court was correct in concluding that any communication during plaintiff Barbara Singers session with Dr. Weiss and the notes of that session were not privileged. Plaintiff met with Dr. Weiss once pursuant to a stipulation, approved and ordered by the court, providing that she and defendant Urcil Peters agreed to participate in psychological treatment for the purpose of facilitating contact between Mr. Peters and their two children. The stipulation also provided that the court would "review the parents' participation and progress in the therapeutic process in 3 months."
The court had the right to obtain the testimony and notes of Dr. Weiss in order to determine whether Ms. Singer had participated and made any progress in the therapeutic process. The language providing that the guardian ad litem would act as a liaison between the court and Dr. Weiss does not negate the language providing the court with the right to review the parties' participation and progress. It is clear that the court would review the parties' participation and progress in three months (although the process did not last that long), but prior to that time, during the sessions, it would rely on the guardian as liaison.
In light of the stipulation, the order requiring Ms. Singer to sign the release was unnecessary.
Dr. Weiss's testimony and her notes of the session do not, however, support the conclusion that Ms. Singer intentionally failed to cooperate with her. After meeting with Ms. Singer and Mr. Peters, Dr. Weiss decided not to take the case, and instead referred them to a therapeutic institute, which she felt was more capable of handling their problems. Dr. Weiss's refusal to take the case was not based on Ms. Singer's unwillingness to participate in the therapeutic process. Instead, it was based on Dr. Weiss's judgment that she could not help the parties. Rather than finding Ms. Singer in contempt of the so-ordered stipulation, the court should have ordered the parties to seek treatment at the therapeutic institute suggested by Dr. Weiss or with another therapist or facility.
At the conclusion of the contempt hearing, the court stated that Mr. Peters should pay pendente lite child supp
Karanja v. Karanja, 597 N.Y.S.2d 739, 193 A.D.2d 718 (N.Y.A.D. 2 Dept., 1993)
Page 739
597 N.Y.S.2d 739
193 A.D.2d 718
Ed KARANJA, Appellant,
v.
Waithira KARANJA, Respondent.
Supreme Cou...rt, Appellate Division,
Second Department.
May 17, 1993.
Bruce A. Young, New York City, for appellant.
Before BRACKEN, J.P., and ROSENBLATT, PIZZUTO and SANTUCCI, JJ.
Page 740
MEMORANDUM BY THE COURT.
In an action for divorce and ancillary relief, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Imperato, J.H.O.), dated May 31, 1990, as granted the branch of the defendant's motion which was to vacate a prior judgment of the same court (Morrocco, J.), dated September 13, 1983, which, upon the default in appearing of the defendant, granted the plaintiff a divorce and ancillary relief.
[193 A.D.2d 719] ORDERED that the order is reversed insofar as appealed from, on the law and the facts, with costs, and the branch of the defendant wife's motion which was to vacate the judgment of divorce, is denied.
The evidence adduced by the plaintiff at the hearing to determine whether service of process had been properly made was essentially unrebutted. This evidence tended to prove that an acquaintance of the two parties acted as a process server and personally delivered a summons with notice to the defendant in June of 1982. In holding that the plaintiff had failed to meet his burden of showing that personal service of the summons with notice had been made (see, e.g., Martini v. Powers, 105 A.D.2d 731, 481 N.Y.S.2d 166; Altman v. Wallach, 104 A.D.2d 391, 478 N.Y.S.2d 718), the Supreme Court relied principally on the inability of the process server to identify a copy of the summons and notice in evidence as the same document which, in 1982, she had delivered to the defendant. The Supreme Court found that "she [the process server] delivered either an envelope or a document but she was not able to tell me that what she delivered was the summons and notice".
We agree with the Supreme Court that the weight of the evidence establishes that a document was in fact personally delivered to the defendant in June of 1982. However, the inability of the nonprofessional process server to recollect, several years after the fact, the exact text of the document delivered, is not fatal to the court's jurisdiction. "It is clear from the circumstances that the only court papers which would have been served at [that] time were those commencing [the action for divorce]" (Blue Spot v. Superior Mdse. Elec. Co., 150 A.D.2d 175, 177, 540 N.Y.S.2d 787). It is not necessary for the process server to "recall what was written on the papers that she served" (White v. White, 121 A.D.2d 533, 504 N.Y.S.2d 27).
The weight of the evidence establishes that the summons and notice were delivered to the defendant in June of 1982. The discrepancy as to the date of service contained in the affidavit of service is not a jurisdictional defect (see, e.g., Mariano v. Steinberg, 87 A.D.2d 606, 448 N.Y.S.2d 47; Mrwik v. Mrwik, 49 A.D.2d 750, 372 N.Y.S.2d 693).
We therefore conclude that the Supreme Court erred, on the facts and on the law, in granting the defendant's motion to vacate, and we therefore reverse. In light of this determination, we need not address the plaintiff's alternative argument
Family
Frost v. Goldberg, 2006 NY Slip Op 05314 (N.Y. App. Div. 7/5/2006), 2006 NY Slip Op 5314 (N.Y. App. Div., 2006)
N/A
OUTCOME: Reverse-NO Pay fees for Law Guardian
Frost v. Goldberg, 2006 NY Slip Op 05314 (N.Y. App. Div. 7/5/2006), 2006 NY Slip Op 5314 (N.Y. App. Div., 2006)
Page 1
2006 NY Slip Op 05314
MARY FROST, appellant,
v.
WILLIAM GOLDBERG, respond...ent.
2005-03070.
Appellate Division of the Supreme Court of New York, Second Department.
Decided July 5, 2006.
In a matrimonial action in which the parties were divorced by judgment dated March 20, 2001, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Barros, J.), dated November 4, 2004, as denied that branch of her motion which was to disaffirm the portion of a report of a Judicial Hearing Officer (Platt, J.H.O.) dated July 13, 2004, which recommended that the plaintiff reimburse the defendant the sum of $12,400 in fees paid by the defendant to the Law Guardian and granted that branch of the cross motion of the defendant which was to confirm that portion of the report.
Bruce A. Young, New York, N.Y., for appellant.
William Goldberg, Montclair, N.J., respondent pro se.
Before: ANITA R. FLORIO, J.P., FRED T. SANTUCCI, REINALDO E. RIVERA, STEVEN W. FISHER, JJ.
DECISION & ORDER
ORDERED that the order is reversed, on the law, with costs, that branch of the motion which was to disaffirm the portion of the report of the Judicial Hearing Officer which recommended that the plaintiff reimburse the defendant the sum of $12,400 in fees paid by the defendant to the Law Guardian is granted, that branch of the cross motion which was to confirm that portion of the report is denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.
The Supreme Court improvidently exercised its discretion in declining to disaffirm and in confirming that portion of the Judicial Hearing Officer's report which recommended that the plaintiff reimburse the defendant the sum of $12,400 in fees paid by the defendant to the Law Guardian. "Although such fees and related expenses are entrusted to the sound discretion of the court, they are nonetheless to be controlled by the equities of the case and the financial circumstances of the parties" (Kane v. Rudansky, 23 AD3d 349, 350; see Domestic Relations Law § 237[b]; Cole
Page 2
v. Cole, 283 AD2d 602).
Here, the Judicial Hearing Officer failed to consider the financial circumstances of the parties. The defendant failed to file a current statement of net worth with his cross motion, as required by 22 NYCRR 202.16(k)(2) (see Kane v. Rudansky, supra). In addition, the plaintiff did not file a statement of net worth with the court. Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing to consider the parties' relative financial positions, and for a new determination on the issue of reimbursement of fees paid to the Law Guardian (see Kane v. Rudansky, supra). The new determination should be made only after receipt of a statement of net worth from both parties (see 22 NYCRR 202.16[k][2]; Kane v. Rudansky, supra; Cole v. Cole, supra at 602-603).
FLORIO, J.P., SANTUCCI, RIVERA and FISHER, JJ., concur
Civil rights
Daniel H. V City of New York
N/A
OUTCOME: damages for Family Civil Rights injury 42USC1983
When the Foster Care System Forgets Fathers
By NINA BERNSTEIN
Published: Thursday, May 4, 2000
New York Times - Page 1
Daniel H. was 3 and Dawn was 4 when their mother took them and disappeared. ...Her estranged husband, a New York City limousine driver, searched obsessively for his children. He posted rewards, enlisted help from a retired police officer and hired a private detective, all to no avail.
As six years passed, he took to driving slowly through residential neighborhoods, looking for two blond children who looked like him. ''I never gave up hope,'' the father, Hardaway H., said in a recent interview. ''But it was as if they were dead.''
Instead, they were in New York City foster care.
In 1991, the authorities had found the children alone in their mother's Bronx apartment. They were emaciated and had evidently been abused. But for three more years, through 33 court hearings, multiple foster placements and the children's complaints of new abuse, the city's foster care system failed to tell their father. The notification that finally reached him in 1994 was part of a routine effort to free the children for adoption.
Daniel H. v. City of New York, a 1996 federal lawsuit filed by Mr. H. -- the surname was withheld under the terms of the case -- is the first of five similar cases brought by fathers who contend that their parental rights, and their children's rights to protection, were trampled by a foster care system biased against men.
These cases, the most recent filed only two months ago, underline how hard it can be in practice for fathers to assert their parental claims.
City officials have not admitted wrongdoing in any of the cases and will not comment because of pending litigation. But they have returned children to four of the five fathers so far, and this year the city paid settlements of $135,000 and $275,000 in two of the lawsuits. Steeper damages are at stake in the others.
''I've been trying to get policy makers to change what is going on,'' said Bruce A. Young, the lawyer handling the cases as a kind of cumulative class action. ''In this day and age, when you could hop on the Internet or the parent locator service used for child support, there's no excuse for not notifying the father. It's a basic human right.''
Mr. Young acknowledges that in a nation in which only 5 percent of single parents raising children are men, fathers who want custody are still exceptional. He said that concerns about domestic violence could make the system suspicious of fathers seeking their children, and that in ordinary divorce proceedings, many fathers use custody demands to frighten an ex-wife into accepting a lower financial settlement. But in foster care cases, he contended, children are hurt when fathers lose their chance to be heard.
Daniel H.'s lawsuit charges that after he was placed in a foster home, his signs of emotional trauma brought beatings, not therapy. Separated from his sister and transferred at age 9 to a group residence where bigger boys routinely abused him, he began openly longing for his father.
But he says a caseworker at the foster agency, St. Dominic's, told him, ''Don't think your father is going to come and rescue you, because your father's dead.''
In fact, the father was living in Queens with a listed telephone number all along.
Officials at St. Dominic's, based in Westchester County and the Bronx, declined to comment. In legal papers, the agency said that caseworkers had tried and failed to find Mr. H., and that after concluding that the boy's complaints of abuse were unfounded, they returned Daniel to the same foster home. There, the lawsuit contends, the boy experienced a new round of beatings ''with a sense of helplessness so severe that at times he considered suicide.''
In recent years, promoting fatherhood has become a mantra of public policy, but foster care practices toward fathers are little changed, Mr. Young said. One of the two cases he filed this year concerns a divorced Navy p
Family
Appeal of Family Law
N/A
OUTCOME: Reversed Trial Judge Drager NY Sup Ct
Appellate Court First Department reversed Trial Judge Drager finding unlawful
delegation of authority to out of court expert to make juddicial decisions regarding supervision of access, day to day the...rapy for child and Reversed order that took child's passport from motion as without basis in record. Appeals Court defined the line of excessive state power into peoples lives. Decided on March 9, 2010 Tom, J.P., Friedman, Sweeny, Nardelli, Abdus-Salaam, JJ. Linda R., Plaintiff-Appellant, 2313C v Ari Z., Defendant-Respondent. Bruce A. Young, New York, for appellant. Order, Supreme Court, New York County (Laura E. Drager, J.), entered August 21, 2009, which, in a child custody proceeding, found that the father should have unsupervised visitation with the subject child after a transition period managed by an "intervention therapist," unanimously modified, on the law, to delete the portion of the order that provides for the intervention therapist to determine when unsupervised visitation is to begin, and otherwise affirmed, without costs. Order, same court and Justice, entered July 31, 2009, which, inter alia, appointed an intervention therapist to supervise the immediate ending of the father's supervised visitation, unanimously modified, on the law, to delete the phrase "and shall follow her directions" in the sixth decretal paragraph, and otherwise affirmed, without costs. Order, same court and Justice, entered October 29, 2009, which, inter alia, temporarily awarded the father decision-making custody with respect to the child's mental health issues, unanimously modified, on the law, to delete the portion of the order requiring that the child's passport be turned over to the mother's attorney, and otherwise affirmed, without costs. Order, same court and Justice, entered November 13, 2009, which, insofar as appealed from as limited by the briefs, directed that the mother's counsel was not to attend the intervention therapy sessions, unanimously affirmed, without costs.
"[T]he determination of whether visitation should be supervised is a matter left to Family Court's sound discretion, and its findings, to which deference is to be accorded, will not be disturbed on appeal unless they lack a sound basis in the record" (Matter of Custer v Slater, 2 AD3d 1227, 1228 [2003] [internal quotation marks and ellipsis omitted]). Here, despite the Law Guardian's view to the contrary (see id.; Baker v Baker, 66 AD3d 722, 723-724 [2009]), the court's finding that the child should transition to unsupervised visitation with the father has ample support in the record, including the opinion of the court-appointed forensic psychologist and the testimony of impartial witnesses that the child seemed comfortable and relaxed while visiting with her father. Further, there is no indication that the court "ignored" evidence of the child's feelings toward her father; rather, in providing for a gradual transition to unsupervised visitation, the court explicitly took the child's feelings into account. [*2]
However, the court improperly delegated to a mental health professional its authority to determine issues involving the best interests of the child, i.e., when unsupervised visitation should commence (see Matter of Held v Gomez, 35 AD3d 608, 608-609 [2006]; Matter of Henrietta D. v Jack K., 272 AD2d 995 [2000]), and we modify accordingly. The parties may, if so advised, make another application to the court regarding unsupervised visitation, at which time the court may render a decision on that issue, with the assistance, if necessary, of further reports from the intervention therapist.
With respect to the child's passport, the parties' settlement stipulation allows the mother to travel with the child to Canada for 10 days at a time, and there has never been any suggestion by the father himself or his attorney that the mother is a flight risk or has any intention of removing the child to Canada (cf. Anonymous v Anonymous, 120 AD2d 983, 984 [1986]; Kresn
