Introduction

In Matter of Christine EE. v. David FF., 2025 N.Y. Slip Op. 1028 (App Div 3d Dept Feb. 20, 2025), the Appellate Division, Third Department, affirmed a Family Court order awarding the mother sole legal and primary physical custody of two children and finding the father in civil contempt for violating a prior custody order. The case centers on whether a sustained breakdown in parental communication and a parent’s unilateral withholding of children can justify converting joint legal custody to sole legal custody and support a contempt sanction.

The parties had previously shared joint legal and physical custody under a 2019 consent order with a weekday/weekend split. Following escalating co-parenting conflict and alleged violations, a series of modification and violation petitions culminated in a fact-finding hearing and Lincoln interviews. The Family Court awarded the mother sole legal and primary physical custody, granted the father weekend parenting time, ordered co-parenting counseling, and imposed—but suspended upon compliance—a 20-day jail term for civil contempt. On appeal, the Third Department found the order supported by a sound and substantial basis in the record and affirmed in full.

Summary of the Opinion

• Change in circumstances established and undisputed: the parents’ inability to effectively communicate rendered joint legal custody no longer feasible.
• Best interests analysis favored the mother: she demonstrated greater capacity to provide stability and meet the children’s medical and educational needs. The father’s parenting choices—excessive emphasis on motor sports interfering with school nights, driving without a valid license for exchanges, obstinacy to reasonable requests, and episodes of aggressive behavior—undercut his bid for decision-making authority.
• Primary physical custody to the mother, with substantial weekend parenting time to the father, was supported, especially given concerns about the father’s home environment (disrepair, children returning with lice and skin rashes).
• The attorney for the children supported sole legal and primary physical custody with the mother; although not dispositive, this aligned with the court’s best-interests analysis.
• Civil contempt finding affirmed under Judiciary Law § 753: clear and convincing evidence showed the father violated a prior custody order without legitimate justification by withholding the children for a month, prejudicing the mother’s rights. A 20-day jail sentence, suspended upon immediate compliance, was within the court’s discretion.
• Order affirmed without costs.

Analysis

Precedents Cited and Their Influence

• Eschbach v Eschbach, 56 N.Y.2d 167 (1982): The cornerstone of New York custody law, Eschbach outlines the multi-factor “best interests of the child” test. The Third Department applies Eschbach to assess the children’s need for stability, parental past performance, home environments, children’s wishes, and each parent’s willingness to foster a relationship with the other parent. Here, Eschbach supports the shift to sole legal custody and primary physical custody for the mother, given stability, educational follow-through, and concerns about the father’s parenting decisions and home conditions.
• Change in circumstances precedents: Matter of Michelle L. v Steven M., 227 A.D.3d 1159 (3d Dept 2024); Matter of Joesph XX. v Jah-Rai YY., 226 A.D.3d 49 (3d Dept 2024); Matter of Richard CC. v Lacey DD., 230 A.D.3d 1389 (3d Dept 2024); Matter of C.M. v Z.N., 230 A.D.3d 1409 (3d Dept 2024); Matter of Cooper v Williams, 161 A.D.3d 1235 (3d Dept 2018). These cases reaffirm that a persistent inability to communicate on child-rearing issues is a material change making joint legal custody untenable. The court relies on this line of authority to state that the threshold for revisiting custody was met and, in fact, undisputed by both parties.
• Best interests applications and deference to Family Court: Matter of Jason VV. v Brittany XX., 230 A.D.3d 1398 (3d Dept 2024); Matter of Robert C. v Katlyn D., 230 A.D.3d 1392 (3d Dept 2024); Matter of Joanna PP. v Ohad PP., 230 A.D.3d 1445 (3d Dept 2024); Matter of Matthew L. v Sierra N., 229 A.D.3d 866 (3d Dept 2024), lv denied 42 N.Y.3d 907 (2024). These decisions emphasize appellate deference to Family Court’s credibility determinations and the “sound and substantial basis in the record” standard. The Third Department frames its review within this deferential posture and finds ample record support for the Family Court’s credibility findings and ultimate disposition.
• Home environment and health conditions: Matter of Kody O. v Maya P., 227 A.D.3d 1196 (3d Dept 2024); Matter of Giuseppe V. v Tiffany U., 224 A.D.3d 1122 (3d Dept 2024). These cases support giving weight to the physical conditions of the home and the children’s health when determining physical custody. The court analogizes to find that the father’s home disrepair and the children’s return with lice and rashes weighed against primary physical custody with the father.
• Custody modifications emphasizing stability and parental judgment: Matter of Barrett LL. v Melissa MM., 224 A.D.3d 942 (3d Dept 2024), lv denied 42 N.Y.3d 905 (2024); Matter of Brenna EE. v Andrew DD., 214 A.D.3d 1039 (3d Dept 2023). These reinforce that consistent, responsible parenting and stability are central, and support awarding sole legal custody to the parent better meeting those needs.
• Civil contempt under Judiciary Law § 753: El-Dehdan v El-Dehdan, 26 N.Y.3d 19 (2015) establishes the elements for civil contempt—clear and convincing proof of a lawful court order with a clear mandate, knowledge, disobedience, and prejudice to the rights of a party. The Third Department relies on El-Dehdan to conclude that the father’s withholding of the children for a month, in defiance of the order and without legitimate justification, satisfied the standard. See also Matter of Michelle L. v Steven M., 227 A.D.3d at 1164; Matter of Brett J. v Julie K., 209 A.D.3d 1141, 1145 (3d Dept 2022).

Legal Reasoning

The Third Department’s reasoning proceeds in three principal steps:

1. Threshold showing—change in circumstances. The parties did not dispute that the breakdown in communication constituted a material change since the 2019 order. The court notes that when parents cannot cooperatively make decisions, joint legal custody “is no longer feasible.” This aligns with a long line of Third Department decisions treating chronic co-parenting dysfunction as a paradigmatic change that opens the door to re-examining custodial arrangements.
2. Best interests analysis and deference to Family Court. Applying Eschbach and its progeny, the court credits testimony that the mother provided greater stability and ensured educational and medical needs were met, while the father:
   • Placed undue emphasis on dirt-bike and ATV racing, causing late returns on school nights and undermining academic routines;
   • Drove the children without a valid driver’s license to exchange locations, reflecting poor judgment and safety risk;
   • Responded obstinately to reasonable co-parenting requests and displayed aggressive behavior, including in front of the children;
   • Kept the children for a month on the ground they “did not want” to return, contravening a binding custody order and failing to foster the relationship with the mother.
   The Family Court also credited evidence that the father’s residence was in disrepair and that the children returned from his care with lice and skin rashes, undermining his case for primary physical custody. While the attorney for the children’s position is not controlling, the AFC’s support for the mother’s sole legal and primary physical custody cohered with the Family Court’s assessment and was duly noted.
3. Civil contempt finding. Under El-Dehdan and Judiciary Law § 753, the court held that the mother proved, by clear and convincing evidence, that the father willfully disobeyed a clear court mandate and prejudiced her rights by withholding the children for a month. The rationale emphasizes that parental “self-help”—even purportedly based on the children’s expressed wishes—does not excuse noncompliance. The 20-day jail sentence, suspended upon immediate compliance, was an appropriate, coercive civil contempt remedy tailored to secure obedience rather than punish.

Impact and Practical Implications

This decision fortifies several recurring themes in Third Department custody and enforcement jurisprudence:

• Co-parenting breakdown as a material change. The case reaffirms that sustained inability to communicate and make joint decisions will, by itself, justify conversion from joint legal custody to sole legal custody.
• “Best interests” elevates stability and judgment over activities. Courts will look critically at extracurricular pursuits that intrude on school routines or child well-being. Parenting decisions that jeopardize safety (e.g., driving without a license) or erode educational consistency weigh against decision-making authority.
• Home environment matters. Evidence of poor home conditions and health/hygiene issues can be dispositive in primary physical custody determinations.
• Firm stance against self-help. Withholding children contrary to an order is a fast path to civil contempt. A parent must seek modification through the court; relying on children’s stated preferences is not a lawful excuse for noncompliance.
• Deference to Family Court is robust. Because credibility and best-interests determinations are fact-intensive, appellate reversal remains unlikely where any “sound and substantial basis” supports the Family Court’s findings. Litigants should marshal their best evidence in the trial court.
• Therapeutic and compliance tools. The directive to enroll in co-parenting counseling underscores courts’ willingness to pair custodial realignment with remedial measures aimed at improving communication and compliance.

Complex Concepts Simplified

• Joint legal custody vs. sole legal custody. Joint legal custody means both parents must collaborate on major decisions (education, health, religion). Sole legal custody vests that decision-making power in one parent when collaboration proves unworkable.
• Primary physical custody vs. parenting time. Primary physical custody identifies the parent with whom the child primarily resides. The other parent typically receives parenting time (visitation), which can be substantial even when legal custody is sole.
• Change in circumstances. After a final custody order, a party seeking modification must first show something materially changed (e.g., communication breakdown, relocation, safety concerns), warranting a re-examination of best interests.
• Best interests of the child (Eschbach factors). A holistic assessment: stability, home environment, parental fitness and past performance, children’s wishes (with maturity caveats), and each parent’s willingness to foster the child’s relationship with the other parent.
• “Sound and substantial basis in the record.” The appellate standard of review defers to the trial court unless its decision lacks record support. If the evidence reasonably supports the Family Court’s conclusions, the order stands.
• Lincoln hearing. A private, in-camera interview of the child by the judge to ascertain wishes and experiences without exposing the child to parental conflict in open court. It informs but does not control the best-interests analysis.
• Attorney for the Children (AFC). A lawyer who represents the children’s expressed interests (not a guardian ad litem). The AFC’s position can be considered by the court but is not dispositive.
• Civil contempt (Judiciary Law § 753). A coercive sanction to enforce compliance with a court order. The moving party must prove, by clear and convincing evidence, a clear order, knowledge, disobedience, and prejudice to their rights. Sanctions can include fines or jail, often suspended upon compliance.
• Clear and convincing evidence. An intermediate burden of proof requiring a high probability that the fact is true—more than a preponderance, less than beyond a reasonable doubt.
• Prejudice to rights. The violation must harm the other party’s lawful entitlements—here, the mother’s rights under the custody order to timely parenting time and decision-making access, and to the children’s continued relationship with her.

Conclusion

Matter of Christine EE. v. David FF. reaffirms a clear throughline in New York custody law: when joint legal custody becomes unworkable due to persistent co-parenting dysfunction, courts will prioritize the children’s best interests by reallocating decision-making authority. Here, the mother’s demonstrated stability and responsiveness to educational and medical needs, paired with concerns about the father’s judgment and home environment, yielded a reasoned shift to sole legal and primary physical custody with structured weekend parenting time for the father.

The opinion also underscores that unilateral withholding of children is a serious affront to court authority and to the other parent’s rights. Relying on children’s preferences cannot justify noncompliance; the proper avenue is a timely motion to modify. The Third Department’s affirmance—rooted in deference to Family Court credibility findings and anchored by El-Dehdan’s contempt framework—signals continued intolerance for self-help and continued reliance on therapeutic and coercive tools (like co-parenting counseling and suspended jail terms) to promote compliance and child-centered stability.

Key takeaway: Persistent co-parenting breakdown is a material change that can justify conversion to sole legal custody, and willful withholding of children invites civil contempt—remedies the Third Department will support where the Family Court’s findings rest on a sound and substantial evidentiary foundation.