Judicial Non‑Delegation in Therapeutic Supervised Parenting Time: Commentary on Matter of McCook v. Delbrune

I. Introduction

The Appellate Division, Second Department’s decision in Matter of McCook v. Delbrune, 2025 NY Slip Op 06322 (Nov. 19, 2025), is a significant addition to New York family law jurisprudence in two intersecting areas:

The standards for civil contempt and custody modification in the context of parental access disputes; and
The limits on delegating judicial authority over parenting-time decisions to mental health professionals or therapeutic agencies.

The decision arises from post-divorce conflict over parental access to two children, involving cross‑petitions by the noncustodial father and custodial mother. The Family Court both denied the father’s requests (for contempt and a change of custody) and granted extensive relief to the mother, including converting the father’s unsupervised parenting time into open-ended, therapeutically supervised access effectively controlled by a private agency.

On appeal, the Second Department:

Affirmed the denial of civil contempt against the mother;
Affirmed the refusal to change custody from the mother to the father; but
Modified the order by striking provisions that delegated to a therapeutic agency the power to:
- Determine when the father’s unsupervised parenting time would resume;
- Control when therapeutic supervision would end; and
- Expand or otherwise modify the father’s access to the children.

In doing so, the Court reaffirmed and sharpened an important principle: while courts may order therapeutic supervised parenting time to protect children’s best interests, the ultimate determination of the scope and progression of parental access is a non‑delegable judicial function. Therapeutic providers may inform the court but cannot replace it.

II. Factual and Procedural Background

A. The Original Divorce Judgment and Custody Arrangement

The parties are the divorced parents of two minor children. By a judgment of divorce entered on September 5, 2018, the Family Court:

Incorporated, but did not merge, a June 12, 2018 stipulation of settlement.
Awarded the mother sole legal and residential custody.
Granted the father a substantial unsupervised parental access schedule, including:
- Alternate weekends;
- Every Tuesday and Thursday after school; and
- Certain holidays.

The fact that the stipulation was “incorporated but not merged” into the judgment has legal significance, discussed further below: it remained contractually enforceable while also acquiring the force of a court order.

B. The 2023 Cross‑Petitions

In 2023, the parties filed cross‑petitions under Article 6 of the Family Court Act (custody and visitation):

The father’s petitions sought, among other things:
- To hold the mother in civil contempt for allegedly violating the parental access provisions of the 2018 judgment; and
- To modify custody by awarding him sole legal and residential custody of the children, effectively reversing the prior custody structure.
The mother’s petitions sought to:
- Modify the father’s parental access provisions under the 2018 judgment; and
- Shift his contact with the children into a supervised and therapeutic framework.

The petitions suggest a breakdown in the original parenting time arrangements, with the mother asserting that unsupervised contact with the father was problematic, and the father claiming that the mother was interfering with his court‑ordered access.

C. The Family Court’s Decision

After a five‑day evidentiary hearing and in camera (private) interviews of the children, the Family Court (Nassau County, Goggin, J.) ruled as follows:

Denied the father’s request to hold the mother in civil contempt for violating the access provisions.
Denied the father’s request to modify custody in his favor.
Granted key aspects of the mother’s petition, including:
1. Suspending the father’s unsupervised parental access schedule under the 2018 judgment;
2. Directing the father and children to engage in therapeutic supervised parenting time at a particular therapeutic agency;
3. Providing that the father’s prior unsupervised schedule would resume when deemed appropriate by the [therapeutic agency];
4. Stating that therapeutic supervised parenting time shall continue until successful discharge by the [therapeutic] agency; and
5. Granting the therapeutic agency discretion to expand and/or modify the father’s access to the children.

The combined effect was to convert the father’s substantial unsupervised visitation into an indefinite course of therapeutically supervised contact, with broad discretion vested in a private, non‑judicial entity to control both the extent and duration of his access.

D. The Father’s Appeal

The father appealed from the July 12, 2024 order, challenging, in essence:

Denial of his civil contempt application;
Denial of his custody‑modification request; and
The breadth and structure of the therapeutic supervised access regime, particularly the delegation of authority to the agency.

III. Summary of the Appellate Division’s Decision

The Second Department, in an opinion by a panel of four Justices (Genovesi, J.P., Ford, Ventura, and Quirk, JJ.), issued a mixed but carefully calibrated ruling:

A. Civil Contempt: Affirmed Denial

The Court held that the Family Court acted within its discretion in denying the father’s motion to hold the mother in civil contempt. Although a valid and clear court order existed (the 2018 judgment with its access provisions), the mother successfully demonstrated an inability to comply with the visitation terms, defeating a finding of contempt.

B. Custody and Access Modification: Affirmed Substantive Findings

The Court emphasized the deference owed to the Family Court’s credibility determinations in custody matters and found a sound and substantial basis in the record for:

Denying a change in custody to the father; and
Concluding that unsupervised parental access by the father would be detrimental to the children, thus justifying therapeutic supervised parental access.

C. Non‑Delegation to Therapeutic Agency: Partial Reversal

The pivotal doctrinal move came in the Court’s treatment of the Family Court’s delegation of authority to the therapeutic agency. Relying on a line of cases—most notably Zafran v. Zafran, Grisanti v. Grisanti, and Lopez v. Neira—the Court held:

“[A] court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded [parental access] rights” … it is “improper for [a] court to condition future [parental access] on the recommendation of a mental health professional.”

Accordingly, the Court modified the Family Court’s order by striking the following provisions:

The clause allowing the father’s unsupervised access to resume when deemed appropriate by the [therapeutic agency];
The direction that therapeutic supervised time shall continue until successful discharge by the [therapeutic] agency; and
The grant of discretion to the agency to expand and/or modify the father's access to the children.

Those branches of the mother’s petition were therefore denied. The rest of the order—including the imposition of therapeutic supervised parenting time—was affirmed.

IV. Detailed Analysis

A. Civil Contempt: The Standard and Its Application

1. Legal Standard for Civil Contempt

The Court relies on Tankleff v. Tankleff, 239 AD3d 685 (2d Dept), to restate the familiar New York standard for civil contempt under Judiciary Law § 753(A)(3). To hold a party in civil contempt, the movant must show, by clear and convincing evidence:

A lawful court order was in effect, clearly expressing an unequivocal mandate;
The alleged contemnor disobeyed that order;
The contemnor had knowledge of the order’s terms; and
The movant was prejudiced by the violation.

Once that showing is made, the burden shifts to the alleged contemnor to refute the allegations or to show a valid defense, such as an inability to comply.

2. “Inability to Comply” as a Defense

“Inability to comply” is not a casual defense; it requires substantial, credible proof that:

The party tried in good faith to abide by the order; and
External circumstances made compliance impossible or impractical despite those efforts.

In Tankleff, for example, the defendant parent argued an inability to comply with visitation obligations, but the Second Department rejected that defense on the facts and upheld contempt. Here, by contrast, the Court concluded that the mother did show an inability to comply with the visitation schedule.

The opinion does not elaborate on the specific factual circumstances, but typical scenarios in which inability is found include:

Children refusing to attend visitation despite the custodial parent’s bona fide efforts;
Safety concerns arising after the order, making literal compliance untenable absent further court direction;
External obstacles (e.g., hospitalization, unexpected crisis) that temporarily prevent adherence to the schedule.

The Court states succinctly:

“Here, the Family Court providently exercised its discretion in denying that branch of the father's petition which was to hold the mother in civil contempt, as the mother demonstrated an inability to comply with the parental access provisions of the judgment of divorce (cf. Tankleff v Tankleff, 239 AD3d at 687).”

The “cf.” (“compare”) citation to Tankleff signals that this case represents the opposite factual outcome: there, inability was not established; here, it was.

3. Practical Takeaways on Civil Contempt

For practitioners, the decision reinforces several points:

Civil contempt remains a discretionary remedy, and appellate courts are reluctant to overturn a Family Court’s nuanced judgment on whether a violation was willful or unavoidable.
Counsel seeking contempt must build a robust factual record showing not only noncompliance but also a lack of legitimate excuse and tangible prejudice to the client.
By contrast, counsel defending against contempt can succeed by meticulously documenting:
- Efforts to comply with the order;
- Obstacles encountered; and
- Reasons why literal compliance would have been impossible, dangerous, or contrary to the children’s welfare absent further court modification.

B. Custody and Parental Access: Best Interests and Supervised Time

1. Deference to Family Court in Custody Matters

The Appellate Division quotes its own precedent in Matter of Bristow v. Patrice, 221 AD3d 684, 685:

“Since the Family Court's determination with respect to custody and parental access depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parties, its findings are generally accorded great deference and will not be disturbed unless they lack a sound and substantial basis in the record.”

This is the classic “sound and substantial basis” standard: appellate courts do not re‑try custody cases; they examine whether the Family Court had sufficient evidentiary support, especially given its unique vantage point in hearing live testimony and interviewing children.

2. Change in Circumstances and Best Interests

Modifying an existing custody or access arrangement requires:

A subsequent change in circumstances since the prior order or judgment; and
A showing that modification is necessary to protect the best interests of the child(ren).

The Court cites Matter of Saliba v. Melvin, 227 AD3d 913, for the proposition that best interests are determined by examining the totality of the circumstances. Relevant factors typically include:

The quality of each parent’s relationship with the child;
Each parent’s ability to meet the child’s emotional, educational, and physical needs;
The stability of each household;
Any history of abuse, neglect, or domestic violence;
The child’s preferences, depending on age and maturity; and
Each parent’s willingness to foster a relationship between the child and the other parent.

Here, although the opinion does not recite the underlying facts, the Court concludes that:

“The Family Court's determinations that a change in custody was not in the children's best interests and that limiting the father's parental access to therapeutic supervised parental access was necessary have a sound and substantial basis in the record.”

3. When is Supervised Parental Access Justified?

The Court invokes Matter of Gray v. Tyson, 205 AD3d 720, for the governing rule:

“Supervised parental access is appropriately required only where it is established that unsupervised parental access would be detrimental to the child.”

Supervised access is thus an exceptional measure; it is not ordered simply because of acrimony or a parent’s imperfections. There must be a credible showing that:

Unsupervised care would likely harm the child physically, emotionally, or psychologically; or
The child would be substantially at risk without supervisory safeguards.

The Court’s endorsement of therapeutic supervised access here indicates that the record—as assessed and credited by the Family Court—supported the conclusion that:

Continued unsupervised access by the father would be detrimental; and
Therapeutic intervention and oversight were necessary components of any safe parenting plan at the present time.

Nevertheless, the Appellate Division is careful to distinguish what the Family Court may properly order (supervised therapeutic time) from who may decide when and how that regime ends or changes (only the court).

C. Non‑Delegation of Judicial Authority to Therapeutic Agencies

1. The Provisions at Issue

The Family Court’s order did not merely direct the parties to engage in therapeutic supervised parenting time. It went further, conferring on the therapeutic agency the power to:

Determine when the father’s unsupervised schedule would resume, by stating resumption would occur when deemed appropriate by the [therapeutic agency];
Control the duration of supervision by providing that therapeutic parenting time would continue until successful discharge by the [therapeutic] agency; and
Unilaterally expand or modify the father’s access.

Functionally, this turned the agency into a quasi‑judicial authority over the father’s parental rights, subject only to its own clinical judgments rather than direct judicial determination.

2. The Governing Case Law on Delegation

The Second Department invokes a consistent line of authority:

Zafran v. Zafran, 28 AD3d 753 (2d Dept):
“[A] court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded [parental access] rights.”
Lajqi v. Lajqi, 130 AD3d 687 (2d Dept): reinforces the non‑delegation principle in a custody/visitation context.
Matter of Grisanti v. Grisanti, 4 AD3d 471 (2d Dept):
It is “improper for [a] court to condition future [parental access] on the recommendation of a mental health professional.”
Matter of Balgley v. Cohen, 73 AD3d 1038 (2d Dept): similarly invalidates delegation of parental access determinations to therapists.
Matter of Lopez v. Neira, 237 AD3d 1097: cited here for the specific proposition that a court may not give a therapeutic agency authority to control the scope of a parent’s access schedule.

Together, these cases crystallize a clear rule: Judges may not abdicate, in whole or in part, their exclusive responsibility for deciding custody and visitation issues to non‑judicial actors.

3. Application in McCook v. Delbrune

The Court applies this line of authority as follows:

“[A] court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded [parental access] rights” … It is “improper for [a] court to condition future [parental access] on the recommendation of a mental health professional” … Here, the Family Court erred by delegating to the therapeutic agency (1) the authority to determine when therapeutic parental access would cease and the father's prior stipulated unsupervised parental access schedule would be reinstated and (2) the discretion to expand and/or modify the father's access to the children (see Matter of Lopez v Neira, 237 AD3d 1097, 1099-1100).

The Second Department thus:

Invalidates the portions of the order that subordinate the father’s parenting time rights to the discretionary, non‑reviewed decisions of the agency; but
Upholds the requirement that parenting time occur in a supervised, therapeutic setting, as a judicially determined measure necessary for the children’s best interests.

4. Why This Non‑Delegation Principle Matters

The non‑delegation rule serves several important structural and due‑process functions:

Separation of powers and judicial responsibility: Only courts—constitutionally vested with judicial power—may adjudicate and modify the core rights of parents and children.
Procedural fairness: A parent is entitled to notice, an opportunity to be heard, and the right to present evidence and challenge evidence before their access is expanded, restricted, or terminated. Private agencies operate under clinical, not judicial, procedures.
Accountability and reviewability: Judicial decisions are subject to appellate review under established legal standards. Private agencies’ discretionary judgments typically are not.
Consistency with legal standards: Courts must apply legal standards such as “best interests of the child” and “detriment.” Mental health professionals apply clinical or therapeutic standards that, while valuable, are not substitutes for legal adjudication.

In modern family practice, courts increasingly rely on therapists, reunification programs, and supervised agencies. This decision reinforces that such reliance:

Is permissible for information gathering, therapeutic intervention, and risk management; but
Cannot extend to outsourcing final or ongoing control over parenting schedules and rights.

5. Permissible vs. Impermissible Use of Mental Health Professionals

The decision implicitly draws a line between:

(a) Permissible

Ordering a parent and child to participate in therapy.
Directing that parenting time occur in a therapeutic supervised setting.
Requesting reports or recommendations from treating clinicians or agencies.
Scheduling future court reviews after a set period, at which point the court considers therapeutic input in determining whether to adjust access.

(b) Impermissible

Allowing a therapist or agency to determine if and when unsupervised parenting time resumes.
Authorizing the therapist to decide, without court involvement, whether parenting time should be expanded, reduced, or terminated.
Conditioning access on a clinician’s unilateral declaration of successful discharge or other clinical milestone without judicial review.

McCook v. Delbrune stands as a clear reaffirmation of this boundary.

D. Precedents Cited and Their Influence

The Opinion weaves several precedents into its reasoning. Briefly:

1. Tankleff v. Tankleff, 239 AD3d 685

Issue: Civil contempt in a parental access context.
Holding: Articulates the four‑part contempt test and stresses that the movant bears the burden of proof by clear and convincing evidence. Rejects an “inability to comply” defense under the facts of that case.
Influence here: Provides the doctrinal framework for assessing the father’s contempt motion and contrasts with the present case, where the mother successfully showed inability.

2. Matter of Bristow v. Patrice, 221 AD3d 684

Issue: Custody and parental access modification.
Key rule: Appellate courts defer to Family Court’s credibility assessments; decisions will not be disturbed absent lack of a sound and substantial basis.
Influence here: Justifies the Second Department’s refusal to second‑guess the Family Court’s core “best interests” findings.

3. Matter of Saliba v. Melvin, 227 AD3d 913

Issue: Modification of a custody arrangement.
Key rule: Requires a subsequent change of circumstances and a determination that modification is needed to protect the children’s best interests, assessed from the totality of the circumstances.
Influence here: Informs the analysis that no custody change in favor of the father was warranted despite changed circumstances.

4. Matter of Gray v. Tyson, 205 AD3d 720

Issue: Appropriateness of supervised parental access.
Key rule: Supervised access is only warranted when unsupervised time would be detrimental to the child.
Influence here: Supports the propriety of ordering supervised therapeutic access, suggesting the record contained sufficient evidence of potential detriment from continued unsupervised contact.

5. Zafran v. Zafran, 28 AD3d 753; Lajqi v. Lajqi, 130 AD3d 687; Grisanti v. Grisanti, 4 AD3d 471; Balgley v. Cohen, 73 AD3d 1038; Lopez v. Neira, 237 AD3d 1097

These cases collectively:

Prohibit a court from delegating the final say on visitation to mental health professionals;
Prohibit making future access wholly contingent on a therapist’s unilateral recommendation; and
Require that all substantive decisions about a parent’s access be made by the court itself.

Lopez v. Neira, in particular, is cited as nearly on all fours with the issue in this case: the improper grant of authority to a therapeutic agency to control access.

These precedents drive the central modification the Second Department makes in McCook—the striking of provisions that vested quasi‑judicial power in the chosen therapeutic agency.

V. Complex Concepts Simplified

1. “Incorporated but Not Merged” Stipulation

When a divorce stipulation is:

Incorporated into the judgment: it becomes part of the court order and is enforceable as such.
Not merged: it also remains a separate contract between the parties, enforceable in a plenary contract action.

In this case, the June 12, 2018 stipulation—setting custody and access terms—was incorporated but not merged into the judgment of divorce. That means:

The access terms had the force of a court order (relevant to contempt and modification); and
The stipulation retained elements of contractual enforceability.

2. Civil Contempt (Judiciary Law § 753[A][3])

Civil contempt is a mechanism to compel compliance with a court order or to remedy prejudice caused by disobedience. It is not primarily about punishment; it is coercive and remedial.

To obtain civil contempt, you must show:

Clear, unequivocal court order;
Knowing disobedience;
Resulting prejudice; and
No adequate defense, such as inability to comply.

3. “Best Interests of the Child”

This is the overarching legal standard in custody and visitation disputes. It is broad and flexible, requiring courts to assess many factors, such as:

Safety and stability;
Emotional bonds with each parent;
Ability of each parent to meet the child’s needs;
History of caregiving;
Any abuse, neglect, or substance issues; and
Child’s preferences, depending on age and maturity.

No single factor is dispositive; the court weighs the totality of the circumstances.

4. Supervised vs. Therapeutic Supervised Parenting Time

Supervised Parenting Time: Visits take place in the presence of a neutral third party (e.g., agency staff, supervisor, or agreed individual), primarily to ensure safety and proper conduct.
Therapeutic Supervised Parenting Time: Supervised visits occur in a clinical or therapeutic setting, usually with a mental health professional, with dual aims:
- Maintaining the parent‑child relationship safely; and
- Working on relational or psychological issues through structured therapeutic intervention.

In McCook, the Court approves the imposition of therapeutic supervised parenting time but rejects giving the therapeutic provider final control over when and how that regime changes.

5. In Camera Interviews

“In camera” literally means “in chambers.” In family cases, courts often interview children privately, without the parents present, to:

Gauge the child’s views in a less intimidating environment;
Protect the child from family conflict and pressure; and
Gather candid information relevant to best interests.

The judge may summarize or reference the content of the interviews in the record but generally preserves some confidentiality to protect the child.

6. “Sound and Substantial Basis in the Record”

This phrase describes the appellate standard of review for custody and visitation determinations. It means:

The decision is supported by credible evidence in the record;
The Family Court did not abuse its discretion; and
The appellate court should not re‑weigh evidence or substitute its judgment unless the decision is clearly unsupported.

7. Non‑Delegation of Judicial Authority

In this context, “non‑delegation” means:

Only the court may determine core issues like:
- Whether a parent will have supervised or unsupervised access;
- The schedule and extent of that access; and
- When and under what conditions those arrangements will change.
Therapists, agencies, and other professionals may:
- Provide recommendations and reports;
- Offer treatment or supervision;
- Inform the court’s decision‑making.
But they may not be given the power to decide, on their own and without further court order, the future course of a parent’s access rights.

VI. Impact and Implications

A. For Future Family Court Practice

This decision will likely influence how Family Courts:

Draft orders involving therapeutic supervised visitation; and
Structure the role of mental health providers in high‑conflict custody cases.

Courts and practitioners should be careful to:

Use language that makes clear:
- The court retains ultimate control over access decisions; and
- Therapeutic agencies act in a supporting, advisory, or supervisory role, not a judicial one.
Set review dates for the court to reassess parenting time in light of therapy progress, rather than leaving changes to the discretion of the provider.

B. For Attorneys Representing Parents

Counsel should:

Scrutinize proposed orders or stipulations that:
- Condition unsupervised access on a therapist’s sole judgment; or
- Give an agency discretion to expand, reduce, or terminate parenting time.
Advocate for:
- Clear standards and timelines;
- Judicial review mechanisms;
- Language that any changes to access must be made by court order.
In contempt proceedings:
- For movants: build a thorough record showing intentional noncompliance and real prejudice.
- For respondents: carefully document efforts to comply and any genuine inability, especially where children resist visitation or safety concerns arise.

C. For Mental Health Professionals and Agencies

Therapeutic providers participating in family court‑mandated programs should understand that:

Their role is to:
- Provide treatment and support;
- Monitor and report on parenting interactions;
- Offer professional opinions to the parties and the court.
They are not the ultimate decision‑makers on:
- When supervision ends;
- Whether and how access is expanded; or
- Whether unsupervised or overnight contact resumes.

Agencies may wish to ensure that court orders and program memoranda accurately reflect this legally required division of responsibility.

D. For Parents

From a parent’s perspective, the case conveys mixed but important messages:

A parent whose access is restricted to supervised or therapeutic visitation should recognize that:
- The court has found some level of risk or detriment in unsupervised contact;
- Meaningful progress—often reflected in therapy—will likely be necessary to regain less restrictive access;
- However, the court, not the therapist, will ultimately determine when those restrictions change.
A parent accused of interfering with visitation should understand:
- Good‑faith inability to comply (e.g., a child’s credible fear or refusal) can, in some circumstances, defeat a contempt application;
- But such an argument must be supported by evidence of sincere efforts to comply and to engage the court, rather than unilateral decisions.

VII. Conclusion

Matter of McCook v. Delbrune is a carefully balanced decision at the intersection of children’s welfare, parental rights, and the expanding role of mental health professionals in family litigation. It affirms:

The high degree of deference afforded to Family Courts on custody and access issues, provided their determinations rest on a sound and substantial basis in the record;
The propriety, when justified by evidence of detriment, of ordering therapeutic supervised parental access in lieu of unsupervised contact; and
The flexible, fact‑sensitive application of civil contempt principles, including the availability of an “inability to comply” defense in appropriate circumstances.

At the same time, the decision forcefully reiterates a crucial structural principle: the core determination of a parent’s access rights cannot be delegated to private therapeutic agencies or mental health professionals. Courts may and should utilize such professionals for their expertise, but only as aids to judicial decision‑making, not as substitutes for it.

In practical terms, the case will guide:

Trial judges in crafting orders that harness the benefits of therapeutic intervention without surrendering judicial authority;
Attorneys in negotiating and litigating parenting plans involving supervised or therapeutic components; and
Parents in understanding both the constraints of court‑ordered therapeutic visitation and the procedural protections that ensure only a judge may ultimately decide the scope of their parental access.

Within the broader landscape of New York family law, McCook v. Delbrune stands as a reaffirmation of the court’s non‑delegable role as the ultimate guardian of children’s best interests and parental rights, particularly in an era where therapeutic and clinical interventions are deeply integrated into the resolution of custody and access disputes.