When Cooperation Fails: Courts Must Set Specific Parenting-Time Schedules and Special-Occasion Protocols (Remittal Required)

1. Introduction

Matter of Zakaria v. Zakaria (Appellate Division, Second Department, decided March 11, 2026) arises from a Family Court Act article 6 proceeding in which the father sought to modify parental access provisions contained in the parties’ divorce-related stipulation of settlement (dated February 28, 2017), which had awarded the mother sole legal and physical custody.

The key issues were (i) whether a change in circumstances justified modifying the agreed-upon access schedule, and (ii) what access schedule served the best interests of the child. A central practical dispute concerned not only routine weekly access, but also access during school breaks, holidays, the child’s birthday, and special occasions (including weddings and Bar Mitzvahs), particularly in light of the parties’ strained ability to cooperate.

2. Summary of the Opinion

The Second Department dismissed the appeal from the Family Court’s decision (because no appeal lies from a decision), but modified the order to substantially expand and clarify the father’s parenting time. The Appellate Division:

• Added alternating weekends from Friday 3:30 p.m. to Monday 8:00 a.m.
• Added weekly Wednesday visits from 5:30 p.m. to 7:30 p.m.
• Added specific access for Father’s Day (9:00 a.m. to 6:00 p.m.)
• Added specific allocations for certain Jewish holidays (Shemini Atzeret/Simchat Torah; Purim; defined Passover blocks)
• Deleted the Family Court’s open-ended encouragement that the parties “work with one another” on special events
• Remitted the matter for the Family Court to issue an order setting: (i) parenting time for school breaks, (ii) the remaining holidays, (iii) the child’s birthday, and (iv) a protocol for special occasions (including weddings and Bar Mitzvahs)

Although the Family Court found a change in circumstances and granted only a limited summer expansion (two uninterrupted weeks), the Appellate Division held that—on this record and given the parties’ cooperation history on midweek dinners and the mother’s obstruction findings—greater structure and specificity were warranted.

3. Analysis

3.1. Precedents Cited

The Opinion is built on established New York custody/parenting-time modification principles, and it uses prior cases to support three main moves: (1) procedural handling of the appeal, (2) standards for modification and appellate review, and (3) the need for concrete, enforceable schedules when cooperation is lacking.

Procedural rule: no appeal from a “decision”

• Schicchi v J.A. Green Constr. Corp., 100 AD2d 509: Cited for the settled principle that no appeal lies from a decision as opposed to an order or judgment. The Second Department applied this to dismiss the father’s appeal from the Family Court’s “decision,” while still reaching the appeal from the “order.”

Modification framework: change in circumstances + best interests

• McAvoy v Hannigan, 107 AD3d 960: Quoted for the rule that a custody/access agreement will not be modified without a sufficient change in circumstances and that the modification must serve the best interests of the child. Here, it anchored the threshold and ultimate inquiry even though the case involved modification of parenting time under a settlement stipulation.
• Matter of Burke v Squires, 202 AD3d 784: Reinforced the same two-part modification standard, supporting the court’s framing that private agreements receive weight, but are not immune from modification when circumstances and best interests so require.
• Matter of Graffagnino v Esposito, 223 AD3d 805 (quoting Matter of Cabano v Petrella, 169 AD3d 901): Used for the formulation that the paramount concern is the child’s best interests under the totality of the circumstances. The Second Department relied on this “totality” lens to justify expanding access beyond what the Family Court ordered.
• Eschbach v Eschbach, 56 NY2d 167: A foundational Court of Appeals best-interests case, cited to underscore that best-interests analysis is multifactor and contextual, and not reducible to any single fact or parental preference.

Deference, but not abdication: credibility, findings, and appellate review

• Matter of Gangi v Sanfratello, 157 AD3d 677: Cited for deference to Family Court determinations because they often depend on credibility and assessments of the parties. However, the Opinion then explains why deference was less constraining here: Family Court made no credibility findings and did not state essential facts.
• CPLR 4213[b]; Matter of Jose L. I., 46 NY2d 1024; Matter of Gray v Tyson, 205 AD3d 720: These authorities supported the Second Department’s ability to conduct an independent review where the lower court failed to state essential facts, provided the record is sufficient. The court invoked this to justify modifying the order rather than simply deferring or remitting on every issue.

Expanding parenting time based on record realities and existing practice

• Hepheastou v Spaliaras, 201 AD3d 793; Matter of Sanders v Ballek, 136 AD3d 676: Cited for the proposition that an access schedule can be further expanded when circumstances and best interests warrant. They supported the Second Department’s discretionary expansion beyond the Family Court’s limited summer-time modification.
• Matter of Miller v Thompson, 184 AD3d 643; Matter of Samuel v Sowers, 162 AD3d 674: Used to validate reliance on a functioning interim arrangement—here, the Wednesday dinner visits in place since 2020. The court treated the parties’ demonstrated ability to carry out that schedule (and the mother’s lack of objection) as evidence of feasibility and child-centered stability.

Right to reasonable access; need for specificity when obstruction/noncooperation exists

• Matter of Yegnukian v Kogan, 179 AD3d 1082; Matter of Stones v Vandenberge, 127 AD3d 1213: Cited for the principle that, absent extraordinary circumstances (e.g., detriment to the child), a noncustodial parent has a right to reasonable parental access. This helped frame the father’s request for additional defined parenting time as a rights-and-welfare issue, not a discretionary “extra.”
• Matter of Cornielle v Rosado, 231 AD3d 824; Matter of Sanders v Ballek, 136 AD3d 676: These cases supported the court’s criticism that, where there is a finding of obstruction of parenting time, the court should directly address requests for structured access and not leave critical segments (breaks/holidays/special occasions) unaddressed.
• Matter of Cabano v Petrella, 169 AD3d 901; Matter of Alvarado v Cordova, 158 AD3d 794: Cited to show that vague directives to “work it out” are inadequate when the parties have demonstrated an inability to cooperate. This line of authority is the backbone of the Opinion’s remedial move: delete aspirational cooperation language and require an enforceable schedule/protocol.

3.2. Legal Reasoning

The Opinion’s reasoning proceeds in a structured sequence:

1. Threshold satisfied — The court agreed with Family Court that there was a change in circumstances since the stipulation sufficient to open the door to modification.
2. Best-interests tailoring — Under the totality of the circumstances, the court held that the father’s schedule should be further expanded. A key fact was the proven workability of the midweek dinner schedule since November 2020 and the mother’s lack of objection, which supported both feasibility and continuity for the child.
3. Specificity over optimism — The court treated the lower court’s “work with one another” language as inadequate given the parties’ demonstrated conflict and the court’s findings that the mother obstructed access. The appellate remedy was to replace aspirational language with concrete allocations and to require a protocol for special occasions.
4. Appellate intervention justified by record sufficiency — Although deference is typical, the Family Court’s lack of credibility findings and essential factual statements allowed the Appellate Division to conduct an independent review and directly modify significant terms, while still remitting unresolved components (school breaks, remaining holidays, birthday, special-occasion protocol) for a full implementing order.

3.3. Impact

The decision’s likely influence is practical and procedural:

• Drafting and litigation leverage — Parties seeking expanded parenting time can point to this case for the proposition that where a parent requests specific allocations (breaks/holidays/birthdays/special occasions), Family Court should not leave those categories vague—especially if cooperation is poor.
• Judicial obligation to craft enforceable terms — The Opinion reinforces that a court must provide an implementable schedule, not merely encourage private negotiation, when the record shows obstruction or persistent conflict.
• Greater attention to interim status quo — Working temporary arrangements (like weekly dinners) can become persuasive evidence of what is feasible and in the child’s interests, potentially accelerating permanent expansions where the arrangement has been stable.
• Religious and cultural holidays — The court’s detailed allocation of Jewish holidays underscores that parenting-time schedules may (and often should) expressly account for religious observances with year-by-year alternation to minimize future disputes.
• Appellate review signal — Where Family Court fails to articulate essential facts, the Appellate Division may independently review and modify, rather than remitting entirely—encouraging more complete findings at the trial level.

4. Complex Concepts Simplified

• “Incorporated, but did not merge”: The stipulation’s terms were incorporated into the divorce judgment, but the stipulation remains a separate contract. Practically, enforcement/modification may involve both contract principles and family-law best-interests standards; the key here is that the schedule is still modifiable upon change in circumstances and best interests.
• Legal custody vs. physical custody vs. parental access: Legal custody concerns decision-making; physical custody concerns where the child primarily resides; parental access (parenting time/visitation) governs the noncustodial parent’s time with the child.
• Change in circumstances: A material shift since the prior order/agreement (e.g., the child’s needs, parental conduct, interference with access) that justifies revisiting the arrangement.
• Best interests / “totality of the circumstances”: A holistic assessment of what arrangement best promotes the child’s welfare and stability, considering many factors rather than a single rule.
• “Sound and substantial basis in the record”: An appellate standard meaning the trial court’s decision must be supported by credible evidence and rational inferences from the record.
• Remittal: The appellate court sends the case back to the lower court to issue a new or more detailed order consistent with the appellate ruling—often to fill in missing schedule details.
• Protocol for special occasions: A set of predefined rules (notice requirements, prioritization, makeup time, dispute-resolution steps) for events that do not occur on a fixed calendar, designed to reduce litigation and conflict.

5. Conclusion

Matter of Zakaria v. Zakaria reinforces that while courts favor stability and will often defer to Family Court’s discretion, parenting-time orders must be specific and enforceable when the record shows poor cooperation or obstruction. The Second Department not only expanded routine and holiday parenting time, but also rejected vague “work it out” directives and required, on remittal, a complete schedule for breaks, remaining holidays, birthdays, and a special-occasion protocol. The case thus stands as a practical precedent for structuring parenting time to minimize conflict and protect a child’s consistent relationships with both parents.