The Courts & Mental Health Evaluations During a Divorce

In Matter of Botros v. Botros, 233 AD3d 1029 (2d Dept. 2024), the Appellate Division, Second Department, upheld the trial court’s dismissal of the father’s petition to modify the parental access provisions of the parties’ Judgment of Divorce. The mother therein was awarded sole legal and residential custody of the children and the father had supervised parental access. The Appellate Division held as part of the Decision & Order:

“"A court hearing a pending proceeding or action involving issues of custody or [parental access] may properly order a mental health evaluation of a parent, if warranted, prior to making a custody or [parental access] determination" (Lajqi v Lajqi, 130 AD3d 687, 688, 11 N.Y.S.3d 860 [2015]; see Family Ct Act § 251 [a]). Further, although "'a court may not order that a parent undergo counseling or treatment as a condition of future [parental access] or reapplication for [parental access] rights'" (Lajqi v Lajqi, 130 AD3d at 688, quoting Matter of Smith v Dawn F.B., 88 AD3d 729, 730, 930 N.Y.S.2d 75 [2011]), the court may deny a parent's petition for parental access where he or she "refused to submit to a court-ordered psychiatric evaluation" that was directed to aid in the court's determination of the petition (Matter of Zirkind v Zirkind, 218 AD2d 745, 746, 630 N.Y.S.2d 570 [1995]; see Zafran v Zafran, 28 AD3d 753, 756-757, 814 N.Y.S.2d 669 [2006]; Matter of Rogers v Fodor, 307 AD2d 395, 396, 762 N.Y.S.2d 667 [2003]). Under the circumstances of this case, the FamilyCourt providently exercised its discretion in dismissing the father's November 2022 petition to modify the parental access provisions of the judgment of divorce so as to award him unsupervised parental access based upon the father's refusal to comply with a court order directing an updated forensic evaluation of the parties.