Custodial Gatekeeping as a Material Change: Third Department Holds that Refusal to Share Information and Flex Parenting Time Justifies Modification

Custodial Gatekeeping as a Material Change: Third Department Holds that Refusal to Share Information and Flex Parenting Time Justifies Modification

Introduction

In In the Matter of Michelle EE. v. John EE., 2025 N.Y. Slip Op. 1019 (3d Dept Feb. 20, 2025), the Appellate Division, Third Department, affirmed a Family Court order that expanded a noncustodial mother’s parenting time and implemented communication protocols, while leaving sole legal and physical custody with the father. The decision clarifies an increasingly important point in New York custody jurisprudence: a custodial parent’s persistent refusal to accommodate reasonable additional parenting time or to share essential information and schedules—even if technically complying with the letter of a prior order—can itself constitute a sufficient change in circumstances to warrant modification of parenting time.

The case arises from a 2020 custody award of sole custody to the father, followed by a 2021 modification that modestly expanded the mother’s access and required her continued mental health engagement. In 2022, the mother petitioned again, seeking joint custody and more time. After fact-finding and Lincoln hearings, Family Court expanded the mother’s parenting time and ordered enhanced communication, but maintained sole custody with the father. The father appealed, and the attorneys for two of the children proposed further modifications to allow “skip visits” or greater child input on scheduling. The Third Department affirmed.

Key issues included: (1) whether the mother demonstrated a sufficient post-2021 change in circumstances; (2) whether Family Court properly applied the best interests analysis; (3) the role of children’s preferences in visitation scheduling; and (4) the scope of appellate review when new developments are raised at oral argument but not in the record.

Summary of the Opinion

  • Threshold change in circumstances: The court held that the mother met her burden. Evidence showed the father consistently refused discretionary or make-up parenting time (holidays, birthdays, school ceremonies, snow days, extracurricular conflicts) and failed to affirmatively share critical school and activity information, thwarting the prior order’s contemplated flexibility.
  • Best interests: Applying established factors, the court endorsed significantly expanded parenting time—alternate weekends from Friday after school to Monday after school, shared school breaks and holidays, and two nonconsecutive vacation weeks—along with “streamlined communication” between the parents. Sole custody remained with the father.
  • Children’s preferences: The court acknowledged children’s wishes warrant “considerable weight” in light of age, but declined to adopt proposals for “skip visit” discretion or open-ended child vetoes of scheduled time, finding the ordered schedule reflects the children’s interests within the best-interests framework.
  • Mootness: Because the oldest child turned 18 during the appeal, issues concerning that child were moot; the oldest child’s attorney’s appeal was dismissed.
  • Record on appeal: New developments raised at oral argument could not be considered because they were outside the appellate record, though the panel noted Family Court remains free to modify if subsequent proven changes arise.
  • Disposition: Order affirmed, without costs.

Analysis

Precedents Cited and Their Influence

The court’s analysis is anchored in familiar Third Department standards:

  • Change in circumstances threshold:
    • Matter of Virginia OO. v Alan PP., 214 A.D.3d 1045, 1046-47 (3d Dept 2023), and Matter of Ronald EE. v Crystal F., 180 A.D.3d 1160, 1161 (3d Dept 2020), lv denied 35 N.Y.3d 908 (2020), confirm that post-order developments undermining a prior custodial framework can justify reopening custody/visitation. Here, the “developments” were not classic safety or relocation issues, but gatekeeping conduct that neutralized flexibility contemplated by the prior order and impeded co-parenting.
    • Matter of Shayne FF. v Julie GG., 221 A.D.3d 1202, 1206 (3d Dept 2023) underscores that once a prima facie change is shown, dismissal is improper; the court applied that to deny the father’s dismissal motions at both procedural junctures.
  • Best interests and deference:
  • Mootness at age 18 and scope of appeal:
    • Family Ct Act § 651(a)-(b), Matter of Leslie LL. v Robert NN., 208 A.D.3d 1479, 1480 n (3d Dept 2022), Vickie F. v Joseph G., 195 A.D.3d 1064, 1065 n 3 (3d Dept 2021), and Matter of Cokely v Crocker, 157 A.D.3d 1033, 1034 (3d Dept 2018) underline that custody/visitation issues become moot at 18.
    • The court’s refusal to consider post-order developments raised only at oral argument reflects the strict appellate limitation to the record on appeal.

Legal Reasoning

1) Change in circumstances. The Third Department accepted a qualitative, relational category of post-order change: the father’s pattern of rigidly adhering to the minimum schedule and refusing reasonable variations, makeup time, or enhanced involvement by the mother in key child milestones, coupled with his failure to affirmatively share schedules and information. Although such conduct may fall short of contempt, it undermines the prior order’s express flexibility (“such other parenting time that may be agreed upon”) and the core best-interests factor concerning a parent’s willingness to foster the child’s relationship with the other parent. That functional erosion of co-parenting dynamics—documented by missed events, one-hour birthday access only after repeated requests and at the cost of later vacation days, and blocked participation in ceremonies and family gatherings—constituted a material change sufficient to reopen the best-interests inquiry.

2) Best interests. The court applied the standard factors:

  • Past performance and relative fitness. The mother’s compliance with a mental health evaluation (no diagnosis) and ongoing counseling evidences remediation of earlier concerns; she actively pursued additional involvement. The father’s stability as custodial parent remained acknowledged by leaving sole custody in place.
  • Willingness to foster relationship. The father’s gatekeeping weighed against him on this factor. The mother’s persistence in seeking time and engagement weighed in her favor.
  • Fidelity to prior orders and ability to provide stability. The father complied with the literal schedule but frustrated the order’s cooperative intent; stability considerations supported maintaining sole custody, but relations warranted more detailed parenting access and communication protocols.
  • Children’s preferences. After Lincoln hearings, the court respected the children’s interests but declined to institute a regime where visits could be “skipped” at will, which risks undermining consistent parent-child relationships. Instead, the court crafted a predictable, child-centered schedule accounting for school, breaks, holidays, and extracurriculars.

3) Resulting order. The expanded structure—alternate weekends from Friday after school to Monday after school; equal sharing of school recesses and holidays; two nonconsecutive vacation weeks—aligns with the principle that, absent proof of detriment, more frequent and regular contact with both parents benefits children. Additionally, the court’s “streamlined communication” directive is a remedial tool targeted at the very dysfunction (information withholding, scheduling friction) that triggered the modification.

4) Appellate deference. The panel emphasized Family Court’s broad discretion in fashioning parenting schedules. The record contained a “sound and substantial basis” supporting the crafted plan, precluding appellate disturbance. Claims premised on post-order changes could not be entertained because they were beyond the record, though the door remains open for future modification upon proof of additional change.

Impact

  • Material change can be relational, not just event-driven. This decision solidifies that a custodial parent’s pattern of refusing reasonable schedule accommodations and withholding routine child-related information can itself be a material post-order change that warrants revisiting visitation—even when the parent is otherwise “in compliance” with the letter of the decree.
  • Expanded parenting time is the default absent harm. The court repeats and applies the Third Department’s presumption favoring expanded parenting time, reinforcing that courts will increase time and impose communication protocols where such measures are consistent with the children’s best interests and there is no showing of detriment.
  • No open-ended child veto of visitation. Although older children’s wishes are entitled to “considerable weight,” the opinion resists converting preferences into a unilateral right to skip visits. Predictable, structured schedules remain the norm; flexibility must be mediated through parental agreement or court-ordered adjustments, not ad hoc cancellations.
  • Communication directives as a remedial tool. The court endorses formalized “streamlined communication” as part of a best-interests remedy when information-sharing has broken down. Practitioners should consider proposing concrete protocols (e.g., shared calendars, deadlines for exchange of schedules, designated communication platforms).
  • Record discipline on appeal. Parties cannot bootstrap new factual developments into an appeal at oral argument; the correct vehicle is a new modification petition in Family Court. The Third Department expressly preserves Family Court’s authority to revisit custody/visitation upon future proven changes.
  • Practical practice note. If a prior order includes “by agreement” parenting time, consistent refusal to ever agree to additional time—especially around milestones—may later support modification. Counsel should document requests, responses, missed opportunities, and information-sharing failures to build a robust record.

Complex Concepts Simplified

  • Change in circumstances: A threshold showing that material conditions affecting the child’s best interests have changed since the last order. It can include behavioral changes in co-parenting dynamics (e.g., gatekeeping), not only major events like relocation or safety concerns.
  • Best interests of the child: A holistic test examining each parent’s past performance, relative fitness, cooperation, compliance with orders, stability, and ability to advance the child’s well-being, along with the child’s preferences (weighted by age and maturity).
  • Sound and substantial basis: The appellate standard defers to Family Court if there is evidence in the record that rationally supports its fact findings and discretionary determinations.
  • Lincoln hearing: A confidential, in camera interview of a child by the judge to ascertain the child’s views and experiences without forcing the child to testify in open court.
  • Mootness at 18: Under Family Ct Act § 651 and related case law, custody and visitation determinations become moot once a child turns 18, because the court cannot direct custody over a legal adult.
  • “Skip visits” requests: While children’s preferences are important, courts typically avoid giving children unilateral veto power over scheduled parenting time; any flexibility is structured through orders or parental agreement to maintain consistency and avoid pressure on the child.

Conclusion

The Third Department’s decision in Michelle EE. v. John EE. meaningfully clarifies that custodial gatekeeping—refusing to accommodate reasonable additional time and failing to share child-related information—can meet the “change in circumstances” threshold, even when the custodial parent technically complies with a prior order’s minimum schedule. In response, courts may expand the noncustodial parent’s access and impose communication protocols, consistent with the strong presumption favoring robust parent-child relationships absent evidence of harm.

At the same time, the opinion underscores enduring principles: best interests remain the polestar; Family Court is granted substantial discretion; older children’s wishes are carefully weighed but do not alone control; and appellate review is confined to the record. For practitioners and parents alike, the message is clear: cooperation, information-sharing, and flexibility are not optional niceties in a joint parenting regime—they are legally consequential, and their absence can justify meaningful judicial recalibration of parenting time.

Case Details

Year: 2025
Court: Supreme Court of New York, Third Department

Judge(s)

Mackey, J.

Attorney(S)

Alderman and Alderman, PLLC, Syracuse (Richard B. Alderman of counsel), for John EE., appellant. Lisa K. Miller, McGraw, attorney for the child, appellant. Andrea J. Mooney, Ithaca, attorney for the child. Tracy A. Donovan Laughlin, Cherry Valley, attorney for the child.

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