Lopez v. Neira: Reaffirming the Court’s Non-Delegable Duty to Define Post-Counseling Parental Access Schedules

Introduction

In Matter of Lopez v. Neira (2025 NY Slip Op 02345), the Appellate Division, Second Department, revisited fundamental questions of custody and parental access after severe inter-parental conflict. The parents—Ligia Avila Lopez (mother) and Karmichael Neira (father)—share two minor children (born 2010 and 2017). Following a domestic violence incident in 2020 during which the father assaulted the mother and injured one child, the parents separated. In April 2021 the mother petitioned for sole legal custody under Family Court Act Article 6. After extensive fact-finding, the Family Court (Queens County) granted her petition and fashioned a complex, therapist-controlled access plan for the father.

The father appealed, challenging (i) the denial of joint legal custody and (ii) the limitations placed on his visitation (“parental access”). The Appellate Division affirmed most of the lower court’s determinations but struck the portions that abdicated judicial authority to third parties—namely, the children’s therapist and the custodial parent—to decide if, when, and how the father’s in-person access would resume after counseling. The appellate court remitted the matter so that the Family Court itself could craft a definite, supervised-visitation schedule consistent with the children’s best interests.

Summary of the Judgment

Sole Legal Custody: Affirmed in favor of the mother. Joint custody was deemed inappropriate given the parties’ antagonism and inability to cooperate.
Therapeutic Requirements: The father must complete a four-month course of individual counseling; during this period he may send letters to the children under specified conditions.
Delegation Invalidated: The Family Court erred by giving the children’s therapist and the mother discretion to expand or limit the father’s access after counseling. Those provisions were deleted.
Remittal: Case returned to the Family Court to establish a concrete, supervised access schedule crafted by the court—not by third parties.

Analysis

A. Precedents Cited and Their Influence

The panel anchored its ruling in a robust line of custody and visitation cases. Key authorities include:

Eschbach v. Eschbach, 56 NY2d 167 (1982) – canonical articulation of the “best interests of the child” factors.
Braiman v. Braiman, 44 NY2d 584 (1978) – joint custody requires cooperation; otherwise inappropriate.
Matter of Haase v. Jones, 230 AD3d 774 (2024) – recent restatement that antagonistic parents defeat joint-custody presumption.
Matter of Kim v. Becker, 223 AD3d 813 (2024) – non-custodial parent’s presumptive right to reasonable access absent extraordinary harm.
Matter of Rogan v. Guida, 143 AD3d 830 (2016) & Balgley v. Cohen, 73 AD3d 1038 (2010) – prohibition on delegating custody/access decisions to mental-health professionals.
Matter of Valentin v. Valentin, 187 AD3d 1024 (2020) & Matter of Cornielle v. Rosado, 231 AD3d 824 (2024) – similar prohibition on delegating access decisions to the custodial parent.
Matter of Mazo v. Volpert, 223 AD3d 907 (2024) – courts may mandate counseling as a component of visitation orders.

Collectively, these precedents guided the court to two conclusions: (1) the high conflict between Lopez and Neira nullified any possibility of joint legal custody, and (2) although therapeutic intervention is permissible, the Family Court retains sole responsibility for specifying the parameters of visitation.

B. Legal Reasoning

Best-Interests Framework. The appellate panel reiterated that custody determinations turn on the totality of circumstances, with stability, parental fitness, past performance, willingness to foster relationships, and the children’s wishes all weighed. The mother’s history of primary caregiving, the father’s violence, and the parties’ acrimony convinced the court that awarding sole legal custody to the mother best served the children.
Non-Delegable Judicial Duty. While Family Court Act § 652 grants wide discretion to fashion access orders, precedent strictly forbids “open-ended delegation” of that duty to non-judicial actors. By allowing the therapist or mother to decide when in-person visits would restart, the trial court ceded its constitutional function. The panel therefore struck those clauses and required the court to promulgate an explicit, court-enforceable supervised-visitation schedule.
Counseling as a Condition. Consistent with Mazo v. Volpert and Buskey v. Alexis, the panel approved the four-month individualized counseling prerequisite, finding it rationally connected to remedying the father’s violent conduct and thus aligned with the children’s welfare.

C. Likely Impact on Future Cases

Clear Line Against Delegation. Trial courts statewide are reminded that they cannot leave expansion or restriction of visitation to therapists or custodial parents. Crafting definite schedules remains an inherently judicial act.
Structured Use of Therapy. Lopez v. Neira will be cited to uphold mandated counseling while preventing therapeutic professionals from becoming gatekeepers of legal rights.
Emphasis on Drafting Precision. Family Court orders must articulate objective triggers, timelines, and supervision modalities; vague “subject to therapist approval” language invites reversal.
Domestic-Violence Contexts. The decision balances protection of children with parental access rights, providing a roadmap for cases involving rehabilitative conditions after intimate-partner violence.

Complex Concepts Simplified

Sole vs. Joint Legal Custody: “Legal custody” concerns decision-making power over schooling, health, religion, etc. Sole legal custody vests that power entirely in one parent; joint custody requires both to decide together.
Parental Access (Visitation): New York courts increasingly use “parental access” instead of “visitation” to signal the continuing parental relationship, even when the parent is non-custodial.
Sound and Substantial Basis: Appellate review standard that asks whether the trial court’s findings are supported by credible evidence and logical reasoning, not merely whether the appellate judges would have reached the same result.
Therapeutically Supervised / Resource Supervised Visits: Visits monitored by a mental-health professional (“therapeutically supervised”) or a court-approved visitation center (“resource supervised”).
Non-Delegable Duty: A core principle that certain judicial responsibilities—here, defining custody/visitation parameters—cannot be outsourced to non-judicial actors.

Conclusion

Lopez v. Neira reinforces two enduring doctrines: (1) violent, high-conflict parents are rarely candidates for joint legal custody, and (2) courts, not therapists or opposing parents, must spell out the contours of parental access. By striking the impermissible delegations and remitting for a comprehensive, court-crafted schedule, the Second Department preserves both the integrity of judicial decision-making and the statutory right of children to maintain a safe, stable relationship with both parents. Future custody litigants and courts alike will look to this opinion when navigating the delicate intersection of therapeutic intervention, domestic-violence remediation, and the judiciary’s ultimate duty to safeguard the best interests of children.