Custody Modification Requires a Post-Order Change Beyond Conditions Contemplated by a Consent Order; Single, Purpose-Linked Social Media Post Insufficient for Harassment/Stalking

1. Introduction

Matter of Lisa F. v Gregory F. (2026 NY Slip Op 04250) arises from multiple related Family Court proceedings in Cortland County under Family Ct Act articles 6 and 8. The parties—Lisa F. (mother) and Gregory F. (father)—are parents of two children (born 2016 and 2019).

In a July 2024 consent order, the mother received sole legal and physical custody. The father received daytime parenting time three weekends per month, with overnights to be reinstated upon obtaining suitable housing. The order also imposed detailed behavioral conditions, including rules on communication, transportation, and substance abuse/mental health evaluations.

Within five months, the mother filed: (i) a violation petition alleging the father missed Christmas parenting time, (ii) a custody modification petition seeking suspension/reduction of the father’s time due to alleged criminal conduct/associations and inadequate housing/transportation, and (iii) a family offense petition tied largely to a social media post and a later in-person confrontation. The father filed his own violation petition alleging the mother denied parenting time, blocked communications, and failed to provide required school/medical updates.

The key issues on appeal were whether the mother established a change in circumstances warranting custody/visitation modification; whether the mother willfully violated the July 2024 order; whether the mother proved family offenses (harassment in the second degree or stalking in the fourth degree); and whether the relief ordered (including make-up parenting time) should be disturbed.

2. Summary of the Opinion

  • The Appellate Division, Third Department affirmed all four Family Court orders.
  • The court agreed the mother failed to prove a change in circumstances since the July 2024 consent order; many asserted concerns predated and were expressly contemplated by the consent order, and the father’s arrest did not create a demonstrated post-order disruption and ended in acquittal.
  • The court upheld the finding that the mother violated the July 2024 order by denying parenting time and communications and by withholding school/medical updates; her concerns did not justify self-help.
  • The court affirmed dismissal of the mother’s family offense petition, holding the proof did not establish harassment in the second degree or stalking in the fourth degree by a preponderance of the evidence—particularly where the social media post was a single communication, mainly about parenting-time deprivation, conditional, and directed at the boyfriend, and where the father had a legitimate purpose in appearing at the residence to address ongoing denial of court-ordered time.
  • Any challenge to the make-up parenting time was deemed moot because the time had been completed and no mootness exception was argued.
  • Procedurally, the court exercised discretion under CPLR 5520 (c) to deem the notice of appeal valid despite referencing the fact-finding decision rather than the entered orders.

3. Analysis

3.1. Precedents Cited

A. Change in Circumstances and Modification Threshold

The court relied on a familiar Third Department line requiring a showing of a requisite change in circumstances before revisiting best interests:

  • Matter of Anthony JJ. v Angelin JJ., 211 AD3d 1394, 1395-1396 [3d Dept 2022] — cited for the governing standard that modification requires a post-order change sufficient to reopen the best-interests inquiry.
  • Matter of Pierre N. v Tasheca O., 173 AD3d 1408, 1408-1409 [3d Dept 2019], lv denied 34 NY3d 902 [2019] — reinforces the threshold requirement and appellate deference to Family Court’s fact-finding.
  • Matter of Beers v Beers, 163 AD3d 1197, 1198 [3d Dept 2018] — likewise supports the proposition that the moving party bears the burden to show a qualifying change in circumstances.

These cases framed the Third Department’s central move here: when a consent order explicitly addresses ongoing concerns (housing, transportation, substance abuse/mental health), the movant cannot treat the mere persistence of those conditions as a new “change,” absent a material deterioration or comparable post-order development.

B. Violation of Custody/Visitation Orders and Burden of Proof

For the father’s violation petition, the court applied the clear-and-convincing evidentiary framework stated in:

  • Matter of Jason VV. v Brittany XX., 230 AD3d 1398, 1402 [3d Dept 2024] — sets out the elements: a lawful order with a clear mandate, actual knowledge, and conduct that defeats/impairs/impedes/prejudices the proponent’s right.
  • Matter of Marisol Y. v Steven Z., 248 AD3d 1482, 1484 [3d Dept 2026] — cited in support of the same burden and elements.

The court also invoked “no self-help” principles, contrasting the mother’s conduct with cases where similar arguments failed:

  • Matter of Steven OO. v Amber PP., 227 AD3d 1154, 1158 [3d Dept 2024] — supports the rule that a parent’s unilateral decision to disregard a court-ordered schedule is not excused by claimed safety/fitness concerns absent court intervention.
  • Matter of Tamika B. v Pamela C., 187 AD3d 1332, 1338 [3d Dept 2020] — likewise emphasizes that remedies must be pursued through the court, not by self-executing suspensions of parenting time.

C. Mootness of Completed Parenting-Time Remedies

The court held challenges to completed make-up parenting time were moot, citing:

  • Matter of Melish v Rinne, 225 AD3d 1302, 1303 [4th Dept 2024]
  • Matter of Jamee Bennett G. v John Nicolaas B., 200 AD3d 413, 414 [1st Dept 2021]
  • Matter of Rosa M. v Francisco P., 151 AD3d 451, 451 [1st Dept 2017]

Collectively, these authorities reinforce that appellate review generally does not decide abstract disputes over completed visitation relief unless a recognized mootness exception is argued and applies (which the mother did not do).

D. Family Offense Proof and “Course of Conduct” Offenses

The decision positioned family offense litigation within a two-layer framework: (i) enumerated offenses under Family Ct Act § 812 (1) (a), and (ii) the preponderance standard under Family Ct Act § 832. It cited:

  • Matter of Samah DD. v Mark VV., 235 AD3d 1116, 1117 [3d Dept 2025], lv denied 44 NY3d 901 [2025] — for the proposition that the petitioner must prove, by a preponderance, that an enumerated family offense occurred.
  • Matter of Erica II. v Jorge JJ., 165 AD3d 1390, 1391 [3d Dept 2018] — cited in connection with harassment in the second degree and how courts assess “course of conduct” versus isolated incidents.
  • Matter of Tammy TT. v Charles TT., 204 AD3d 1336, 1337 [3d Dept 2022] — cited regarding stalking in the fourth degree requirements.
  • Matter of Alison EE. v Stephen FF., 245 AD3d 1053, 1054 [3d Dept 2026] — used to support the conclusion that the evidence here did not show the repeated acts necessary for a “course of conduct.”
  • Matter of Evelyn EE. v Lorraine B., 152 AD3d 915, 917-918 [3d Dept 2017], lv denied 30 NY3d 903 [2017] — also supports distinguishing insufficient isolated or limited communications from actionable course-of-conduct behavior.

E. Deference to Family Court’s Credibility Determinations

The court reiterated the special deference owed to Family Court in custody-family offense fact patterns, especially where the judge is “familiar with these parties and the many prior proceedings between them,” citing:

  • Matter of Stefanow v Stefanow, 214 AD3d 1215, 1217 [3d Dept 2023]

3.2. Legal Reasoning

A. Why No “Change in Circumstances” Was Shown

The mother’s modification effort failed because it largely repackaged concerns that existed before the July 2024 consent order and were expressly contemplated by it: housing instability, transportation difficulties, and substance abuse concerns. The court treated the consent order as a baseline allocation of risk and safeguards. In effect, the mother had agreed to a structure that already accounted for those issues (including conditions tied to overnight reinstatement).

The opinion’s key move is conceptual: a condition cannot be both (i) known and built into the consent framework and (ii) later re-labeled as a “change” merely because it persists. The court required some post-order escalation—a “material deterioration or other postorder development”—and found none.

Even the father’s arrest shortly before the petition did not supply the missing change because the mother did not demonstrate any resulting disruption to parenting time, housing, employment, or caregiving capacity—and the father was acquitted. The mother’s claims about the father’s associates were deemed speculative; other concerns were generalized and not supported by objective proof.

B. Establishing the Mother’s Violation and Rejecting “Self-Help”

Applying the clear and convincing evidence standard for violations, the court emphasized the mother’s admissions: she knowingly denied parenting time and communication after the Christmas dispute, and knowingly stopped providing required school/medical updates as early as October 2024.

The court’s reasoning on “self-help” is straightforward: perceived concerns about the father’s circumstances do not authorize unilateral suspension of court-ordered access. The proper path is to seek judicial relief (emergency application, modification request, enforcement of conditions), not to act as the sole arbiter of compliance. This preserves both the court’s authority and the children’s stability by avoiding tit-for-tat escalation.

C. Mootness of Make-Up Parenting Time

The court declined to evaluate the appropriateness of the make-up parenting time schedule because it had already been completed, rendering the issue moot. The mother also failed to argue any exception to mootness (e.g., an issue capable of repetition yet evading review).

D. Why the Family Offense Petition Was Properly Dismissed

The mother pursued harassment in the second degree (Penal Law § 240.26 [1], [3]) and stalking in the fourth degree (Penal Law § 120.45 [1]). Both offenses can involve “course of conduct” concepts—repeated acts without legitimate purpose that are alarming or fear-inducing.

The court treated the father’s social media post as a single communication that primarily addressed the mother’s failure to exchange the children and expressed conditional willingness to fight the boyfriend if the boyfriend chose to do so. Family Court could reasonably find this was not (i) a threat of physical contact directed at the mother, nor (ii) repeated acts establishing a “course of conduct.”

As to the January 2025 incident at the residence, it was undisputed the father was not the driver, and Family Court was not required to credit the mother’s account that he encouraged vehicular aggression. The appellate court further endorsed a key statutory element for stalking—no legitimate purpose—by concluding that appearing at the residence to address ongoing denial of court-ordered parenting time could be viewed as having a legitimate purpose, even if the exchange was acrimonious.

3.3. Impact

A. Reinforcing the “Consent Order Baseline” in Modification Practice

The decision underscores a practical rule with significant day-to-day consequences in Family Court: when a consent custody/visitation order explicitly anticipates certain problems (housing, transportation, substance abuse evaluation), a party seeking modification must show more than the problems’ continued existence. They must demonstrate a post-order change—an escalation, a new development, or a concrete impact on parenting capacity or the children’s welfare.

B. Narrowing Reliance on Arrest Allegations Without Demonstrated Parenting Impact

The court’s treatment of the father’s arrest—particularly noting the lack of demonstrated disruption and ultimate acquittal—signals that allegations of criminality, without a developed record of functional impact, may be insufficient to reopen custody/visitation determinations. Practitioners should expect courts to ask: What changed for the children?

C. Strong Reminder Against Self-Help in Parenting-Time Disputes

The opinion reinforces that withholding parenting time and communication in response to perceived violations or safety concerns exposes the withholding parent to a violation finding, even where that parent believes they are acting protectively. The likely effect is increased judicial emphasis on rapid applications and enforcement mechanisms rather than unilateral action.

D. Family Offense Petitions Based on Social Media: “Course of Conduct” and “Legitimate Purpose” Gatekeeping

This case illustrates a limiting principle in family offense litigation: a single social media post, especially one tied to a parenting-time dispute and not plainly directed as a threat to the petitioner, may fail to prove harassment or stalking absent repetition, targeted threats, or evidence meeting the “course of conduct” and “no legitimate purpose” elements. The decision may deter overcharging family offense petitions in custody conflicts where proof shows episodic hostility rather than statutory offenses.

4. Complex Concepts Simplified

  • Change in circumstances: Before changing custody/visitation, the court first asks whether something meaningful has changed since the last order. If not, the court typically will not redo the “best interests” analysis.
  • Best interests of the child: The broad standard used to decide what custody/visitation arrangement is healthiest for the child. Courts often only reach this analysis after a threshold change is shown.
  • Consent order: An order both parties agreed to. Because it reflects negotiated resolution, courts often treat it as establishing what risks and conditions were already accounted for at that time.
  • Clear and convincing evidence (violation): A higher proof standard than “more likely than not.” The moving party must strongly prove the other party knowingly disobeyed a clear court mandate in a way that impaired rights.
  • Preponderance of the evidence (family offense): “More likely than not.” This lower standard applies to proving enumerated family offenses under the Family Court Act.
  • Self-help: Taking enforcement into your own hands—e.g., refusing visitation or communication—rather than returning to court for relief. Courts generally disfavor this because it undermines orders and harms stability.
  • Course of conduct: Repeated actions forming a pattern, not just one incident. Many harassment/stalking theories require more than isolated behavior.
  • Legitimate purpose: Some conduct—though unwelcome—may not qualify as stalking if it serves a plausible lawful aim (here, addressing denial of court-ordered parenting time).
  • Mootness: Courts generally do not decide issues where the practical dispute is already over (e.g., make-up parenting time already completed), unless an exception applies.

5. Conclusion

Matter of Lisa F. v Gregory F. affirms a disciplined approach to post-order family litigation: modification requires a real post-order change, not the continued presence of problems that were known and incorporated into a consent order’s structure. It also reinforces that parents may not resort to self-help by suspending court-ordered parenting time and communications, and it clarifies evidentiary limits in family offense petitions grounded in isolated social media activity and disputed confrontations— particularly where repetition (“course of conduct”) and lack of legitimate purpose are not proven.

In the broader legal context, the decision strengthens predictability in custody enforcement and modification practice by emphasizing stability, judicial oversight, and careful statutory parsing of harassment and stalking claims within high-conflict parenting disputes.