Including Children in Orders of Protection Requires Demonstrable Exposure or Endangerment: Second Department’s Clarification in Laura W. v. John U. (2025)

Court: Appellate Division, Second Department, New York
Date: August 13, 2025
Citation: 2025 NY Slip Op 04684

Introduction

This commentary examines the Second Department’s decision in Laura W. v. John U., a consolidated matrimonial and Family Court Act article 8 family offense matter. The case presents two central themes: first, the standards governing modification of a joint custody arrangement in the face of severe inter-parental conflict; and second, a clarified threshold for including a child as a protected party in an order of protection. While the Appellate Division largely affirmed the Supreme Court’s determinations—awarding the mother sole legal and physical custody with supervised parental access for the father and finding the father committed harassment in the second degree—it modified the order by removing the child from the protective order because the record did not show any exposure to or endangerment from the father’s offending conduct.

The parties are parents of one child. After their 2021 divorce judgment that incorporated joint legal custody with the mother as the primary physical custodian, a 2023 wave of cross-allegations led to consolidation of a family offense petition with the matrimonial action. The Supreme Court, after hearing testimony—including from the child’s therapist—issued orders of protection favoring both mother and child and restructured custody. On appeal, the father and the child (through the Attorney for the Child) challenged key aspects of that outcome.

Key Holdings at a Glance

Custody Modification: Affirmed. A change in circumstances justified ending joint legal custody; the mother is awarded sole legal and physical custody, with the father receiving supervised parental access.
Family Offense: Affirmed. The father committed harassment in the second degree; the mother’s alleged offenses were not proven by a preponderance of the evidence.
Orders of Protection:
- In favor of the mother: Affirmed for five years.
- In favor of the child: Modified—denied. Inclusion of the child as a protected person is improper absent evidence that the offenses occurred in the child’s presence or endangered the child, i.e., that inclusion is “necessary to further the purposes of protection.”
Dismissal of Father’s Family Offense Petition: Affirmed; prior protective measures against the mother vacated.

Summary of the Judgment

The Second Department modified the Supreme Court’s order by striking the order of protection in favor of the child and otherwise affirmed. The Court held that:

Severe and enduring parental antagonism rendered joint legal custody unworkable; the mother offered the more stable environment, and the father exhibited a pattern of abusive conduct that significantly interfered with the child’s relationship with the mother.
The father’s allegations against the mother failed under the preponderance standard, particularly in light of credibility determinations and corroborating testimony from the child’s therapist negating the mother’s intent to commit any family offense.
The record did not support including the child as a protected party under Family Court Act § 842(l), because the father’s family offense conduct was not in the child’s presence and did not endanger the child; thus inclusion of the child was not “necessary to further the purposes of protection.”

Analysis

Precedents Cited and Their Influence

Custody Modification and Best Interests

Matter of Dokmeci v Herbert, 167 AD3d 877: Establishes that custody modifications require a change in circumstances necessitating adjustment to protect the child’s best interests.
Matter of Mercedes v Mercedes, 187 AD3d 1190; Matter of DeVita v DeVita, 143 AD3d 981; Eschbach v Eschbach, 56 NY2d 167: Articulate the “totality of the circumstances” analysis in best-interests determinations. Eschbach is the foundational Court of Appeals authority enumerating key best-interest factors.
Matter of Connolly v Walsh, 126 AD3d 691: Details particular factors (fitness, parent-child bond, developmental support, parental guidance, and impact on child’s relationship with the other parent), reinforcing a multifactorial approach.
Matter of Kim v Becker, 223 AD3d 813; Matter of Donkor v Donkor, 198 AD3d 892: Emphasize appellate deference to trial-level credibility determinations, reversible only if lacking a sound and substantial basis.
Matter of Haase v Jones, 230 AD3d 774; Matter of Martinez v Gaddy, 223 AD3d 816; Matter of Abramson v Shaw, 154 AD3d 744: Joint legal custody is inappropriate where parental discord is severe; courts may award sole custody to the parent providing stability and minimizing harmful interference with the child’s relationship with the other parent.

Family Offense Proof and Orders of Protection

Family Ct Act § 832; Matter of Wiley v Wiley, 231 AD3d 841; Matter of Lederman v Lederman, 208 AD3d 483; Matter of Mansour v Mahgoub, 202 AD3d 961; Matter of Livesey v Gulick, 194 AD3d 1045: A family offense must be proven by a fair preponderance; trial-level credibility findings are accorded significant deference.
Family Ct Act § 842(l); Matter of Lynch v Jimenez, 230 AD3d 496; Matter of Cook v Berehowsky, 211 AD3d 727: A child may be included as a protected person only where it is “necessary to further the purposes of protection.” Prior cases instruct that necessity is not assumed; the record must show circumstances—such as exposure or endangerment—warranting the child’s inclusion.

Impact of these precedents: The cited authorities provided the scaffolding for the appellate court’s two core determinations: (1) the custody shift grounded in a proven change in circumstances and the best interests framework, and (2) the correction of an overbroad protective order that failed to satisfy the statutory “necessity” requirement as applied to the child.

Legal Reasoning

Ending Joint Legal Custody Amid Intractable Conflict

The Court accepted the Supreme Court’s credibility assessments regarding a “severely antagonistic and embattled history,” which made joint legal custody “not possible.” This is squarely within the Second Department’s consistent line (Haase, Martinez) that joint decision-making breaks down when parental conflict is entrenched and corrosive. The hearing record supported the finding that the father’s “pattern of abusive conduct” significantly interfered with the child’s relationship with the mother and that the mother could offer a more stable environment. Stability, continuity, and protection of the child’s emotional welfare tipped the scales decisively.

Proof and Dismissal of Family Offense Allegations Against the Mother

Applying the preponderance standard of Family Ct Act § 832, the Court upheld the Supreme Court’s dismissal of the father’s petition against the mother. Credibility findings favored the mother, with the child’s therapist corroborating that she lacked the intent necessary to commit any alleged family offenses. Because the factual determinations were supported by the record, the Appellate Division deferred and left the dismissal intact.

Harassment in the Second Degree by the Father

The Court affirmed the finding that the father committed harassment in the second degree, again deferring to the hearing court’s credibility assessments and weighing of the evidence. Although the opinion does not detail the specific acts, the standard applied is consistent with prior family offense jurisprudence, requiring proof by a preponderance and focusing on the respondent’s intent and conduct.

Refusing to Include the Child as a Protected Person

The most consequential refinement in this decision concerns the limits on including a child as a protected party in an order of protection. Citing Family Ct Act § 842(l), as interpreted in Lynch and Cook, the Court held that such inclusion must be shown to be “necessary to further the purposes of protection.” Here, the record showed no exposure of the child to the father’s offending conduct and no endangerment. Without those elements, the necessity prong was unmet and the child’s inclusion could not stand. The order was modified accordingly, preserving the mother’s protective order but removing the child as a protected party.

Likely Impact and Practical Implications

On Orders of Protection Involving Children

Heightened Record-Building: Trial courts and practitioners must develop specific evidence showing why including a child is necessary—e.g., direct exposure to conduct, credible threats impacting the child, or concrete risks of harm. Mere proof of a family offense against a parent is not enough.
Tailored Relief: The decision discourages reflexively listing children as protected persons when the record does not connect the offending conduct to the child’s safety. Expect more granular, individualized protective orders.
Appellate Scrutiny: Orders of protection that include children without articulated, evidence-based necessity findings risk partial reversal or modification on appeal.

On Custody Litigation

End of Joint Legal Custody in High-Conflict Cases: The decision reaffirms that enduring hostility and dysfunctional co-parenting can constitute a change in circumstances justifying sole legal custody to one parent.
Credibility is King: Where the record supports the trial court’s credibility findings, appellate intervention is rare. Parties should prioritize consistent, corroborated evidence (e.g., neutral professionals’ testimony, records) at the hearing stage.
Supervised Access as a Stabilizing Tool: Even absent direct child endangerment, supervised access may be ordered to contain inter-parental conflict that destabilizes a child’s relationship with a parent and overall well-being.

Complex Concepts Simplified

Change in Circumstances: A material development after the prior order (e.g., escalating conflict, new facts) that makes the existing arrangement no longer serve the child’s best interests.
Best Interests of the Child: A holistic assessment of what arrangement most promotes the child’s safety, stability, emotional and intellectual development, and healthy relationships with both parents.
Sound and Substantial Basis: The appellate standard that asks whether the trial court’s decision is supported by enough credible evidence; if yes, the appellate court will not substitute its view of the facts.
Family Offense (Preponderance Standard): The petitioner must show it’s more likely than not that the respondent committed a qualifying offense (e.g., harassment). This is a lower threshold than “beyond a reasonable doubt.”
Harassment in the Second Degree: A family offense category encompassing conduct intended to harass, annoy, or alarm another; factual proof of intent and conduct is essential.
Orders of Protection (OOPs): Court directives that can require a person to stay away or refrain from certain conduct. Under FCA § 842(l), adding a child as a protected party demands a record-based showing that doing so is necessary to protect that child.
Supervised Parental Access: Parenting time occurs in the presence of an approved supervisor to ensure the child’s safety and reduce conflict or harmful behavior.
Consolidation of Proceedings: The Supreme Court may consolidate a family offense proceeding with a matrimonial action to resolve related issues cohesively, conserve resources, and avoid inconsistent findings.
Attorney for the Child (AFC): A lawyer who represents the child’s stated interests in family litigation and may participate as a nonparty-appellant on the child’s behalf.

Practice Pointers

Seeking to Include a Child in an OOP: Build a record demonstrating exposure, endangerment, or specific risk to the child; tie the requested protection directly to the child’s safety and well-being.
Defending Against Overbroad OOPs: Emphasize lack of exposure/endangerment, argue for tailored relief, and request explicit findings on necessity under FCA § 842(l).
Custody Modification Strategy: Document changes since the last order, show how the current arrangement harms the child’s interests, and present credible third-party testimony (therapists, teachers) where appropriate.
Preparing for the Hearing: Credibility will decide close cases. Ensure consistent testimony, corroborating records, and, when relevant, neutral professional witnesses.

Conclusion

Laura W. v. John U. is a significant Second Department decision for two reasons. First, it reinforces the principle that entrenched parental conflict can justify ending joint legal custody when the best interests analysis points to a single decision-maker and supervised access for the other parent. Second—and most notably—it clarifies that children cannot be reflexively added as protected persons in orders of protection. Under Family Court Act § 842(l), inclusion requires a case-specific showing that it is necessary to protect the child, typically evidenced by exposure to or endangerment from the offending conduct. The ruling promotes tailored, evidence-driven protective orders and underscores the enduring weight of trial-level credibility determinations in family practice.