Co‑Parenting Breakdown and Educational Instability as “Change in Circumstances” in Custody Modifications: Commentary on Jaime KK. v. Monica JJ.

Court: Appellate Division, Third Department, New York
Docket: CV-23-2280
Citation: 2025 NY Slip Op 06565 (Nov. 26, 2025)
Judge Writing Opinion: Reynolds Fitzgerald, J. (Clark, J.P., Aarons, Pritzker & McShan, JJ., concurring)

I. Introduction

The Third Department’s decision in Jaime KK. v. Monica JJ. is a detailed application of New York’s custody‑modification framework to a familiar but difficult modern problem: how courts should respond when parents who once shared joint legal and physical custody become unable to co‑parent, and the child’s schooling and daily structure begin to suffer.

At its core, this opinion does three things:

Reaffirms that a serious deterioration in the parents’ ability to cooperate—particularly around education and basic care—constitutes a “change in circumstances” justifying reconsideration of custody.
Illustrates how instability in schooling (multiple school changes, tardiness, academic lag) and inconsistent daily routines can tip the best‑interests analysis toward the more structured parent.
Clarifies that a substantial reduction in one parent’s parenting time is permissible where it directly addresses identified harm (here, school tardiness and hygiene) yet still affords “regular and meaningful access.”

Along the way, the court also addresses:

The effect of a corrected order on a prior appeal,
Preservation and standards governing judicial recusal based on a law clerk’s prior employment, and
The fundamental right to counsel in custody proceedings.

II. Factual and Procedural Background

A. The Parties and the Original Custody Arrangement

The parties, referred to as the father (plaintiff/respondent, Jaime KK.) and the mother (defendant/appellant, Monica JJ.), are divorced parents of a child born in 2013. Under a 2018 divorce judgment incorporating their October 1, 2018 separation and settlement agreement:

They shared joint legal custody and shared physical custody.
The father’s custodial periods ran from Saturday evening to Tuesday morning, extended to Wednesday morning when the child was not in school.
The agreement specified that the child would attend a Montessori school, with the mother solely responsible for the tuition.
If the mother could not afford to keep the child enrolled, the fallback was attendance at public school.

Thus, at the outset the parties were envisioned as co‑equal decision‑makers with substantial, shared parenting time, and the mother bore primary financial responsibility for non‑public schooling.

B. Breakdown Leading to the Modification Motions

By March 2023, the shared regime had become unsustainable. The father moved by order to show cause in Supreme Court (Schenectady County), seeking:

Modification of custody to grant him physical custody, and
Authority to immediately enroll the child in the public school district where he resides.

His motion was driven in part by educational concerns: he alleged that the mother had failed to pay the private school tuition, leading to the child’s disenrollment.

In April 2023, the mother opposed the motion and filed her own modification petition in Family Court (Schenectady County) seeking custody of the child. The Family Court proceeding was later transferred to Supreme Court, which is common in New York practice where there is an overlapping matrimonial context.

C. Supreme Court’s Fact‑Finding and Orders

Supreme Court (Cuevas, J.) conducted:

A fact‑finding hearing (custody trial) at which the parties testified, and
A Lincoln hearing (an in camera interview with the child, outside the parents’ presence).

The court concluded that:

The father had demonstrated a change in circumstances, primarily the parties’ inability to effectively co‑parent.
Modification of the prior custody order was in the child’s best interests.

Accordingly, the court issued:

An order dated November 27, 2023, and
A corrected order dated January 11, 2024 (which would later supersede the November order).

The corrected order provided:

Primary legal and physical custody to the father.
The mother retained:
- The right to “timely information” concerning the child’s education, health, religious instruction, and general welfare.
- The right to obtain records regarding these matters.
Parenting time schedule for the mother:
- During the school year:
  - First and third weekends of every month, with potential extension to Monday when school is not in session.
  - Every Wednesday evening for two hours (a midweek visit/dinner).
- During summer school recess:
  - Alternating weeks (equal time in the summer).
Schooling:
- The child was to remain at Mater Christi School (a non‑public school) through the 2023–2024 school year.
- Thereafter, the father—after consultation and a meeting with the mother—would determine where the child would attend school.

The mother appealed both the November 27, 2023 order and the corrected January 11, 2024 order to the Third Department.

III. Summary of the Opinion

A. Disposition

The Third Department:

Dismissed the appeal from the November 27, 2023 order as moot, because that order had been superseded by the corrected January 11, 2024 order.
Affirmed the corrected January 11, 2024 order in all respects, without costs.

B. Key Holdings

Change in circumstances: The court held that the father established the required “change in circumstances” by showing a significant deterioration in the parents’ relationship such that they were no longer able to communicate and cooperate to meet the child’s educational, medical, and general needs. This finding had a “sound and substantial basis in the record.”
Best interests of the child: Considering the traditional best‑interests factors, the court upheld the award of primary legal and physical custody to the father, emphasizing his ability to provide stability, structure, and consistent school attendance, in contrast to the mother’s unstable and “unconventional” lifestyle and parenting.
Parenting time reduction: The reduction in the mother’s parenting time was not error. The court found the schedule still afforded her “regular and meaningful access” to the child and was tailored to address specific concerns about school tardiness and hygiene.
Recusal claim: The mother’s argument that the judge should have recused himself because his law clerk previously worked for the father’s counsel’s law firm was:
- Unpreserved, as she failed to object or move for recusal below, and
- Meritless even if preserved, under existing Third Department caselaw.
Right to counsel: The record showed the mother was advised of her right to counsel, the matter was adjourned for her to obtain counsel, and she was represented throughout the fact‑finding hearing. She was therefore not deprived of her fundamental right to counsel.

IV. Detailed Analysis

A. The Change‑in‑Circumstances Standard and Its Application

1. The legal test

New York applies a two‑step framework to modification of a prior custody order:

The moving party must first show a change in circumstances since entry of the prior order.
If such change is shown, the court must then determine whether modification is in the best interests of the child.

The opinion quotes the standard from Matter of Ashley UU. v Ned VV., 235 AD3d 1200 (3d Dept 2025), and Matter of Kelly AA. v Christopher AA., 240 AD3d 1011 (3d Dept 2025):

“A party seeking to modify a prior order of custody must show that there has been a change in circumstances since the prior order and, then, if such a change occurred, that the best interests of the child would be served by a modification of that order.”

The court further relies on Matter of Debra YY. v Michael XX., 234 AD3d 1021 (3d Dept 2025), to elaborate that:

“A change in circumstances may be established by evidence that the relationship between the parents has deteriorated to the point where they simply cannot work together in a cooperative fashion for the good of their child.”

2. Co‑parenting breakdown as a change in circumstances

In Jaime KK., the core change is not a new job, a relocation, or a discrete event—rather, it is the progressive deterioration of the co‑parenting relationship, particularly around core parenting responsibilities.

The Third Department points to the following evidence, much of which came directly from the parties’ own testimony:

Both parents acknowledged their inability to communicate effectively.
The parties’ relationship had become “acrimonious,” and that acrimony had “further deteriorated” since the prior 2018 order.
The parents could not effectively cooperate to address the child’s educational, medical, and general needs.

In this respect, the case builds on a consistent line of Third Department authority (e.g., Debra YY.; Anthony JJ. v Angelin JJ., 211 AD3d 1394 [3d Dept 2022]) that:

A breakdown in communication and cooperation is itself a sufficient “change” where it undermines the joint custody arrangement.
Joint legal custody presupposes a basic level of communication and mutual respect; when that disappears, the shared regime becomes unworkable.

By explicitly tying the parties’ conflict to the failure to meet the child’s ongoing educational and medical needs, the opinion underscores that the “change” must relate to the child’s welfare, not simply interpersonal dislike.

3. Deference to the trial court’s fact‑finding

The Third Department reiterates its standard of review for custody determinations:

“As Supreme Court is in a superior position to evaluate witness credibility, this Court will defer to its factual findings and only assess whether its determination is supported by a sound and substantial basis in the record.” (citing Matter of Michael M. v Makiko M., 238 AD3d 1304, 1305 [3d Dept 2025])

The opinion repeatedly emphasizes:

Supreme Court issued a “lengthy and meticulous” decision with “extremely detailed” factual and legal analysis.
The appellate court’s role is not to reweigh the evidence but to ensure a “sound and substantial” evidentiary basis supports the trial court’s conclusions.

This confirms the high level of deference appellate courts will give to trial courts in custody cases, especially where, as here, credibility assessments and Lincoln hearings are central.

B. The Best‑Interests Analysis

1. Framework for best interests

Once a change in circumstances is established, the court turns to the child’s best interests, guided by a “host of factors.” Relying on Matter of Aden HH. v Charish GG., 226 AD3d 1109 (3d Dept 2024), and Matter of Marina C. v Dario D., 228 AD3d 1016 (3d Dept 2024), the court lists the familiar considerations:

Quality of the parents’ respective home environments,
Need for stability in the child’s life,
Each parent’s willingness to promote a positive relationship between the child and the other parent,
Each parent’s past performance and relative fitness,
Each parent’s ability to provide for the child’s intellectual and emotional development and overall well‑being.

With this framework, the opinion assesses in detail the contrasting environments the father and mother offer.

2. Stability and structure at the father’s residence

The court portrays the father’s home and parenting style as structured and stable:

He has lived in the same residence since 2019 with his fiancée and the child’s half‑sibling.
The child has her own bedroom and access to a large yard, playground, and pool.
The father is retired, allowing him to:
- Provide regular meals at reasonable hours,
- Maintain a consistent bedtime,
- Oversee the child’s hygiene and general welfare,
- Ensure timely attendance at school, medical appointments, and extracurricular activities.

Although there was testimony that the father was occasionally late in dropping the child off at school, the court obviously regarded this as minor compared to the chronic tardiness and disorganization under the mother’s care.

3. Educational instability and concerns with the mother’s care

In sharp contrast, the mother’s situation is described as:

A “carefree lifestyle” and self‑described “unconventional” parenting style.
A residence under threat of foreclosure and her own unemployment.
Repeated educational disruptions:
- The mother had enrolled the child in three different schools in four years.
- When the child was enrolled at Mater Christi, she was “lagging academically,” at least initially, which the court links to prior instability.
Deficiencies in basic care:
- The child was “consistently tardy to school” when with the mother.
- The child often arrived at school “disheveled and wearing ill‑fitting clothes.”

Perhaps most strikingly, the court underscores the mother’s attitude toward the father’s involvement:

She showed “intolerance and disdain” for the father’s “structured” and “authoritarian” parenting style.
This led to:
- Chronic lateness in bringing the child to exchanges for the father’s parenting time.
- Cancelling medical appointments the father had scheduled and failing to reschedule them.
- Not notifying the father in advance of the child’s medical appointments.
- Failing to respond in a timely manner on the co‑parenting communication app (which she herself insisted on using).
- Cutting off the father’s FaceTime conversations with the child.

These findings go directly to:

The mother’s willingness to foster the child’s relationship with the father, and
The impact of her lifestyle choices on the child’s daily welfare and schooling.

The opinion is careful not to condemn “unconventional” parenting in the abstract; rather, it ties that style to concrete negative outcomes: foreclosure risk, unemployment, chronic tardiness, disheveled appearance, and academic lag.

4. Deference to credibility and final conclusion on best interests

Deferring to Supreme Court’s credibility determinations, the Third Department concludes that a “sound and substantial basis” supports awarding the father both legal and physical custody. The court cites Matter of Ashley UU. v Ned VV., 235 AD3d 1200 (3d Dept 2025), and Matter of Robert C. v Katlyn D., 230 AD3d 1392 (3d Dept 2024), where similar best‑interests evaluations were upheld.

Thus, the case stands firmly within a broader Third Department trend: when faced with a choice between a structured, predictable environment and one marked by instability and non‑cooperation, particularly in education and medical care, the court will favor the more structured environment, even if this means transitioning from joint custody to one parent having primary legal and physical custody.

C. Parenting Time: “Regular and Meaningful Access” vs. Operational Needs

1. The mother’s objection and the appellate response

The mother argued that the revised schedule “drastically” reduced her parenting time. The Third Department disagreed.

The appellate court emphasized that she retains:

Two weekends per month, with possible extension to Monday if no school,
A midweek Wednesday dinner (two hours),
Alternating weeks in summer,
The child’s February school vacation, and
An equal rotation of holidays.

This satisfies the requirement that a noncustodial parent have “regular and meaningful access” to the child.

2. Tailoring the schedule to address school and hygiene concerns

The court connects the specific contours of the schedule to the particular concerns identified:

One of the “several concerns” was the mother’s disregard for:
- The child’s hygiene, and
- Tardiness in bringing the child to school.
The restructured schedule minimizes school‑morning responsibility on the mother during the academic year (primarily father handles school mornings), thereby reducing the risk of continued tardiness.

The court cites Matter of Michael M. v Makiko M., 238 AD3d 1304 (3d Dept 2025), and Matter of Henry CC. v Antoinette DD., 222 AD3d 1231 (3d Dept 2023), to confirm that such a schedule is a proper exercise of the trial court’s discretion: a custody/visitation arrangement may be structured to remedy specific problems, provided the noncustodial parent still enjoys consistent, meaningful contact.

D. Procedural and Ancillary Issues

1. Appeal from a superseded order

The November 27, 2023 order was superseded by the corrected January 11, 2024 order. Thus, the appeal from the earlier order was dismissed. The court relies on Matter of Debra YY. v Michael XX., 234 AD3d 1021, 1022 n 2 (3d Dept 2025), and Matter of Leah VV. [Theresa WW.], 157 AD3d 1066 (3d Dept 2018), which stand for the proposition that:

When a corrected or subsequent order covers the same subject matter and supersedes the prior order, an appeal from the earlier order must be dismissed as academic,
The live controversy is reviewed through the lens of the corrected order.

2. Recusal and the law clerk’s prior employment

The mother argued on appeal that the trial judge should have recused himself because his law clerk had previously been employed at the law firm representing the father.

The Third Department disposes of this argument in two steps:

Unpreserved: The mother never objected or moved for recusal during the hearing. Under New York preservation rules, such a claim generally cannot be raised for the first time on appeal. The court cites:
- Matter of Cecelia BB. v Frank CC., 200 AD3d 1411, 1417–1418 (3d Dept 2021).
- Matter of Cameron ZZ. v Ashton B., 183 AD3d 1076, 1080–1081 (3d Dept 2020), lv denied 35 NY3d 913 (2020).
No substantive basis for recusal: Even if preserved, the allegations are “unavailing,” consistent with prior authority that:
- A law clerk’s prior employment with counsel’s firm, without more, does not mandate recusal.
- Absent evidence of current involvement, bias, or improper influence, the connection is too attenuated.

This confirms a relatively strict approach: litigants must promptly raise recusal issues, and a law clerk’s prior work history alone rarely suffices to disqualify the judge.

3. Right to counsel in custody proceedings

The mother also contended that she was not advised of her right to counsel. The Third Department finds this argument “belied by the record”:

On her first court appearance, she was advised of her right to counsel.
The court adjourned the proceedings to permit her to retain counsel.
She was, in fact, represented by counsel throughout the fact‑finding hearing.

The court therefore holds that she was not deprived of her fundamental right to counsel, citing:

Heber v Heber, 237 AD3d 1276, 1279 (3d Dept 2025), and
Matter of Evelyn EE. v Ayesha FF., 143 AD3d 1120, 1123–1124 (3d Dept 2016), lv denied 28 NY3d 913 (2017).

This is consistent with broader New York law: in custody and visitation proceedings, parties have a fundamental right to counsel; however, where the record demonstrates clear advisement and continuous representation, appellate claims of denial will not succeed.

V. Complex Concepts Simplified

1. “Change in Circumstances” in Custody Modifications

When a custody arrangement is set by a prior court order or divorce judgment, it is not easily disturbed. To reopen it, a parent must show that something significant has changed since that order was entered.

This “change in circumstances” can include:

Relocation to a distant area,
Substance abuse or domestic violence,
Serious health issues,
Or—as in Jaime KK.—a major breakdown in the parents’ ability to work together, especially if it affects the child’s schooling, medical care, or daily routine.

The key is that the change must be material and must relate to the child’s well‑being.

2. “Best Interests of the Child”

Once a change is shown, the court must decide what arrangement now serves the child’s “best interests.” There is no rigid formula, but courts look at:

Which home is more stable and safe,
Each parent’s physical and mental health,
Performance of parental duties (school, medical care, supervision),
Willingness to support the child’s relationship with the other parent,
Educational continuity and the child’s academic needs,
The child’s wishes (especially as the child gets older), often via a Lincoln hearing.

In Jaime KK., the best‑interests test turned heavily on educational stability, timeliness, hygiene, and the parents’ relative ability to cooperate.

3. Joint vs. Sole Legal and Physical Custody

Legal custody refers to the power to make major decisions about the child’s education, religion, and medical care.
- Joint legal custody: parents must confer and make major decisions together.
- Sole (or primary) legal custody: one parent has the final say, though courts often encourage consultation.
Physical custody (or residential custody) refers to where the child primarily lives and who is responsible for day‑to‑day care.

In this case, the parents went from joint legal and shared physical custody to the father having primary legal and physical custody, mainly due to the breakdown in co‑parenting and the mother’s inconsistent performance on educational and basic care responsibilities.

4. “Sound and Substantial Basis in the Record”

On appeal, the question is not whether the appellate judges would have made the same decision from scratch. Instead, they ask:

Is there a solid evidentiary basis in the record supporting the trial court’s findings?
Did the trial court’s conclusions logically follow from that evidence?

If the answer is yes—even if some evidence points the other way—the appellate court will not disturb the custody determination. This is the “sound and substantial basis” standard referenced in the opinion.

5. Lincoln Hearing

A Lincoln hearing is a private, in‑camera interview of the child by the judge in a custody case, outside the presence of the parents. Its purposes are:

To hear the child’s preferences and experiences candidly,
To shield the child from the direct adversarial process,
To give the judge insight into the child’s perspective and emotional state.

The transcript is usually sealed, and appellate courts often simply note that such a hearing occurred and that it informed the trial court’s decision.

6. Recusal and Preservation

Recusal is when a judge steps aside from a case due to potential bias or conflict of interest. In New York:

The party claiming bias or conflict must typically move for recusal in the trial court.
If the party stays silent and only raises the issue on appeal, it is generally considered unpreserved and will not be considered.

In Jaime KK., the mother did not move for recusal even though she later complained about the judge’s law clerk’s prior employment with her ex‑husband’s counsel. The appellate court therefore refused to entertain the argument and, alternatively, said it would have rejected it on the merits anyway.

7. Fundamental Right to Counsel in Custody Cases

New York recognizes a fundamental right to counsel in proceedings that can affect a parent’s custody of or access to a child. This includes:

Advising parties of their right to counsel at the outset,
Adjourning cases where appropriate to permit a party to obtain counsel,
Appointing counsel in certain circumstances where required by statute.

Once the record shows a party:

Was informed of the right to counsel, and
In fact had counsel throughout the critical stages,

a later claim of denial of counsel will not succeed, as in this opinion.

VI. Impact and Significance

A. Reinforcing Co‑Parenting Capacity as a Central Custody Factor

The decision underscores that co‑parenting capacity is not merely a “soft” factor in the background—it can independently justify modification of custody where it deteriorates significantly and hampers the child’s welfare.

Future litigants in the Third Department can expect:

Joint legal or shared physical custody orders are vulnerable when parents demonstrably cannot communicate or cooperate about essentials like school and medical care.
Evidence of persistent non‑communication, interference with contact, missed or cancelled appointments, and school‑related dysfunction can be decisive.

B. Educational Stability and Daily Structure as Best‑Interests Anchors

This opinion is particularly important for its emphasis on:

Educational continuity (limiting school changes),
Timely attendance,
Academic performance, and
Basic routines of hygiene, sleep, and meals.

It signals that judicial tolerance for repeated school changes and chronic tardiness is low where it can be tied to a parent’s instability or disorganization. Parents seeking to retain custody should demonstrate:

Consistent ability to get the child to school on time and prepared,
A stable home environment, even if modest, and
Willingness to coordinate school and activity schedules with the other parent.

C. Structured vs. “Unconventional” Parenting: Where the Line Is Drawn

The court does not condemn non‑traditional parenting per se. The point of demarcation is whether the parenting style:

Promotes or undermines the child’s educational and developmental needs, and
Respects the other parent’s role and court‑ordered access.

Here, the mother’s “unconventional” approach crossed the line because it resulted in school tardiness, academic lag, inconsistent hygiene, and interference with the father’s relationship with the child.

D. Parenting Time Adjustments as Remedial Tools

The opinion also illustrates that:

Appellate courts will support targeted visitation adjustments that address specific problems (e.g., school tardiness) even if they reduce one parent’s time.
So long as the noncustodial parent retains “regular and meaningful access,” the configuration of days and weeks lies within the trial court’s broad discretion.

This gives trial judges substantial latitude to craft creative schedules that, for example, assign school mornings primarily to the parent with a better track record of punctuality and preparation.

E. Procedural Lessons: Preservation and Corrected Orders

For practitioners, the case sends clear procedural messages:

Recusal issues must be raised promptly, on the record, via motion; waiting until appeal is too late.
When a corrected order is entered, appeals should focus on that order; appeals from superseded orders will be dismissed as academic.
Right‑to‑counsel claims require a careful look at the record; where advisement and representation are clear, such arguments will fail.

VII. Conclusion

Jaime KK. v. Monica JJ. is not a radical new departure in New York custody law, but it is a thorough and instructive application of established principles to a fact pattern increasingly common in high‑conflict co‑parenting arrangements.

The decision:

Solidifies that a breakdown in co‑parenting—especially in relation to schooling and medical care—can itself be a sufficient “change in circumstances” to open the door to modification.
Reaffirms that in a best‑interests analysis, educational stability, daily structure, and consistent basic care carry substantial weight.
Confirms that a noncustodial parent’s time can be significantly re‑shaped if needed to protect the child’s school attendance and routine, provided access remains “regular and meaningful.”
Clarifies procedural expectations around recusal, superseded orders, and the right to counsel.

For parents and practitioners alike, the central lesson is clear: joint custody and generous time‑sharing arrangements require, at minimum, functional communication, respect for the other parent’s role, and consistent attention to the child’s schooling and basic needs. When those prerequisites disappear, New York courts—particularly in the Third Department—will not hesitate to reallocate legal and physical custody to the parent better positioned to provide stability and structure in the child’s life.