Date: Aug 7, 2026

No Delegation Where Court Declines to Schedule Parental Access: “Permit the Children to Visit if They So Desire” Construed as a Protective Directive

1. Introduction

Matter of Ghokassian v. Portala-Ghokassian (2026 NY Slip Op 04854) is a Second Department decision arising from post-divorce Family Court proceedings under Family Court Act article 6 involving three children (born 2008, 2011, and 2013). The parents’ divorce judgment incorporated (but did not merge) their May 17, 2021 stipulation, which provided for joint legal custody, sole residential custody to the mother, and specified parental access to the father.

After the father filed (i) violation/contempt petitions alleging the mother failed to produce the children for access on certain dates, and (ii) a modification petition seeking sole legal and residential custody, the mother cross-moved to modify the judgment to award her sole legal custody and to terminate the father’s parental access. Following a hearing and in camera interviews, the Family Court denied the father’s modification petition, dismissed the contempt branches, awarded the mother sole legal custody, and effectively terminated scheduled parental access.

The appeal presented three recurring issues in custody/access litigation: (1) what constitutes a sufficient change in circumstances and best-interests basis to modify custody and access; (2) how much weight to give children’s stated wishes, including preteens and young teens; and (3) whether an order improperly “delegates” parental access determinations to children when it states the custodial parent must allow visits “if they so desire.”

2. Summary of the Opinion

The Second Department affirmed. It held that:

The record provided a “sound and substantial basis” to keep the mother as sole residential custodian despite findings that she interfered with the father-child relationship.
The court properly awarded the mother sole legal custody because the parties’ volatility made joint decision-making unworkable.
The Family Court providently exercised its discretion in declining to schedule any parental access, giving due consideration to the children’s wishes and the failure of therapeutic access efforts.
The challenged language requiring the mother to “permit the children to visit the father if they so desire” was not an unlawful delegation because, in context, the court made no award of parental access at all; the language was construed as a directive to avoid conduct that would sabotage any future child-initiated relationship and to preserve enforcement options if the mother obstructed.
The contempt branches were properly dismissed because the father failed to prove by clear and convincing evidence that the mother knowingly disobeyed an unequivocal mandate; the lack of access was found primarily attributable to the children’s refusal.

A partial dissent would have ordered therapeutic parental access for the two younger children and would have found civil contempt, reasoning the order effectively conditioned access on children’s wishes (an improper delegation) and that the mother deliberately frustrated access.

3. Analysis

A. Precedents Cited

Modification standard; best interests; deference

Matter of Pierce v Caputo (quoting Pettei v Pettei): supplied the threshold rule that modification requires a “subsequent change in circumstances” such that modification is necessary to protect the child’s best interests.
Matter of Limanov v Limanov and Matter of Soper v Soper: reinforced that best interests are assessed under the “totality of the circumstances.”
Matter of Freyer v Macruari and Matter of Watling v Watling: anchored the appellate posture—Family Court credibility assessments and fact-finding receive “great deference” and will not be disturbed absent a lack of “sound and substantial basis” in the record.

Best-interests factors; children’s wishes; stability

Matter of Narine v Singh (quoting Matter of Martinez v Gaddy): provided the familiar best-interests factor set (home environment, guidance, emotional/intellectual development, financial ability, fitness, and effect on the other-parent relationship).
Vayner v Vayner (quoting Matter of Coull v Rottman): supported giving “great weight” to a child’s wishes where age/maturity make the input meaningful, while still not treating them as controlling.
Matter of Morales v Diaz: emphasized stability/continuity in maintaining current arrangements where appropriate.

Residential custody maintained despite interference findings

Matter of Diaz v Vicente and Matter of Brisard v Brisard: supported outcomes in which custody remains with a primary caretaker even where interference is found, so long as best interests and continuity strongly favor the custodial home.
Matter of Miller v Perez and Matter of Martinez v Driscoll: were cited for considering evidence that children are thriving, cared for medically/educationally, and integrated into a bonded household.
Matter of Sullivan v Plotnick: supported the conclusion that removing children from a stable custodial environment may be “devastating,” weighing against transfer of residential custody.

Joint legal custody rejected when cooperation absent

Matter of Haase v Jones (quoting Matter of Martinez v Gaddy): supplied the governing rule that joint custody is inappropriate where parties are antagonistic and unable to cooperate on child-related decisions.

No scheduled access; therapeutic access attempts; child opposition

Matter of Jackson v Hall and Matter of Sullivan v Plotnick: supported declining to schedule access where children are strongly opposed and therapeutic access efforts fail.
Matter of Baalla v Baalla, Matter of Morocho v Jordan, and Matter of Smisek v DeSantis: were used to support giving meaningful weight to the wishes of the 11- and 13-year-old children as sufficiently mature in the in camera interviews.

Delegation doctrine and its limits (majority vs dissent framing)

Matter of Mondschein v Mondschein and Matter of Clezidor v Lexune: stated the core principle that a court may not delegate its authority over parental access to a parent or child, and that conditioning access on a child’s desires tends to defeat the right of access.
Matter of Leva v Sokol: distinguished; the majority treated this case as an example of impermissible conditioning, whereas here the court “declined to make any award” of access rather than awarding access contingent on agreement.
Matter of Jayceon H. [Aniya M.]: cited in dissent for the proposition that access determinations are entrusted to the court based on best interests (supporting the dissent’s view that the order’s phrasing functionally ceded authority).
Matter of Lopez v Neira (and again Matter of Clezidor v Lexune): cited by dissent to support remittal for a therapeutic access schedule rather than a child-conditioned regime.

Civil contempt / willful violation of access orders

Matter of Omelime v Odudukudu (quoting Matter of Sicina v Gorish): provided the “clear and convincing evidence” burden to prove willful violation of a Family Court order.
Matter of Morales v Diaz (quoting Matter of Freeborn v Elco): supplied the elements: lawful unequivocal order; knowledge; disobedience; and prejudice.
Matter of Garanin v Bykhovsky and Matter of Tedesco v Mazzara: supported rejecting contempt where the proof does not show knowing disobedience of an unequivocal mandate.
Matter of Guy v Weichel and Matter of Chaundhry v Saleem: cited in dissent for civil contempt elements and for granting contempt where clear-and-convincing proof supports it.
Matter of Thompson v Thompson: cited in dissent as a general reference for alienation/frustration of access as contempt-supporting conduct.
Matter of Mendoza-Pautrat v Razdan: cited in dissent for remittal for sanction after contempt.

B. Legal Reasoning

Change in circumstances and best interests. Applying Matter of Pierce v Caputo/Pettei v Pettei, the court treated the dispute primarily as a best-interests determination under the totality of circumstances, with strong appellate deference (Matter of Freyer v Macruari). Although the Family Court found maternal interference, it found overriding stability factors: mother as primary caretaker, children thriving, needs met, and significant household bonds. Those findings, plus the potential harm of disruption (Matter of Sullivan v Plotnick), supported continuing residential custody with the mother.
Sole legal custody. Relying on Matter of Haase v Jones (quoting Matter of Martinez v Gaddy), the court concluded the parties’ volatility precluded cooperative joint decision-making, justifying sole legal custody to the mother.
Termination of scheduled parental access. The court emphasized child opposition and unsuccessful therapeutic efforts, and gave weight to the children’s wishes given their ages and maturity. The reasoning reflects a pragmatic best-interests approach: where forced access is likely to fail or harm the children’s emotional welfare, the court may decline to schedule access (while recognizing that children’s wishes are not dispositive).
Delegation issue—key interpretive move. The decision’s most “rule-like” contribution is its contextual reading of language that, in isolation, resembles improper delegation: the directive that the mother “must permit the children to visit the father if they so desire.” The majority avoided the delegation doctrine by characterizing the order as making no parental access award at all, and treating the quoted phrase as: (a) an anti-sabotage instruction (including non-disparagement), and (b) a preservation of the father’s ability to bring a future violation petition if the mother obstructs any child-initiated contact. This approach distinguishes “access conditioned on consent” (impermissible) from “no scheduled access, but no obstruction of voluntary contact” (permissible as framed here).
Contempt—failure of clear and convincing proof of willful disobedience. Applying the elements from Matter of Morales v Diaz (quoting Matter of Freeborn v Elco) and the clear-and-convincing standard from Matter of Omelime v Odudukudu, the court held the father did not show the mother knowingly disobeyed an unequivocal mandate. The court accepted factual findings that the children’s refusal was the primary cause of missed access in late 2022, undercutting a “willful violation” theory.

C. Impact

Drafting and construing “permission” clauses. This case signals that the Second Department may uphold “permit the children to visit if they so desire” language when the order otherwise declines to schedule access—treating it as a non-delegative, protective directive rather than a conditional access regime. Practically, litigants should expect courts to argue over whether such language is (i) a disguised delegation, or (ii) merely an anti-obstruction instruction; the surrounding decretal paragraphs and stated disposition on access will matter.
Children’s wishes at 11 and 13. The decision reinforces that preteens/young teens can be found “sufficiently mature” such that their in camera views receive substantial weight, particularly where therapeutic efforts have failed.
Interference findings do not automatically shift residential custody. Even with findings of interference, continuity and the children’s thriving in the custodial home can outweigh transfer requests—especially under the deferential “sound and substantial basis” review.
Contempt remains exacting. The opinion underscores that frustration of access is not enough in the abstract; petitioners must tie the missed access to knowing disobedience of an unequivocal mandate by clear and convincing proof, and overcome alternative causal findings (e.g., children’s refusal).

4. Complex Concepts Simplified

“Incorporated but not merged”: The settlement terms are included in the divorce judgment, but the settlement remains a separate enforceable contract; enforcement/modification issues may implicate both judgment principles and contract concepts.
Legal custody vs. residential custody: Legal custody concerns decision-making (education, health care, religion). Residential custody concerns where the child primarily lives day-to-day.
Parental access: New York’s term for visitation/parenting time; it can be scheduled, supervised, therapeutic, or (as here) not scheduled at all.
Therapeutic parental access: Parenting time conducted within a therapeutic framework (often with a clinician) to repair or support the parent-child relationship.
In camera interview: The judge speaks privately with the child (typically with the attorney for the child present) to hear the child’s views without putting the child in open court.
“Sound and substantial basis in the record”: A deferential appellate standard: if the Family Court’s decision is supported by adequate evidence and credibility findings, the appellate court generally will not substitute its judgment.
Delegation of parental access: Courts cannot give a parent or child the power to decide whether access occurs. The debate here turned on whether the order actually did that, or instead denied scheduled access and merely barred obstruction of voluntary contact.
Civil contempt; “clear and convincing evidence”: Civil contempt is a remedy for disobeying a court order that harms another party’s rights. “Clear and convincing” is a high proof standard—more than “more likely than not,” less than “beyond a reasonable doubt.”

5. Conclusion

Matter of Ghokassian v. Portala-Ghokassian affirms broad Family Court discretion in high-conflict custody and access disputes, particularly where children are thriving in the custodial home and strongly oppose access after failed therapeutic efforts. Its most notable doctrinal contribution is its contextual limitation on the “delegation” rule: language directing a custodial parent to “permit the children to visit the father if they so desire” is not necessarily an unlawful delegation where the court otherwise declines to schedule parental access and uses the clause as an anti-obstruction safeguard. The decision also illustrates the continued rigor of civil contempt proof requirements in access-enforcement litigation.