When Parent–Grandparent Conflict Makes “As-Agreed” Visitation Untenable, Family Court Must Set a Definitive Schedule

Matter of Justine N. v. Michelle P., 2026 NY Slip Op 03497 (App Div 3d Dept June 4, 2026)

1. Introduction

This Third Department decision addresses a recurring Family Court problem in custody/visitation cases involving a nonparent custodian: (1) what qualifies as extraordinary circumstances permitting a nonparent—here, the children’s maternal grandmother—to obtain custody over a parent; and (2) when a court may order visitation “as the parties may agree” rather than imposing a structured schedule.

The underlying 2016 order granted joint legal custody to the mother, the father, and the maternal grandmother, with primary physical custody to the grandmother in Virginia and parenting time “as the parties could agree.” In 2024, the mother sought a fixed visitation schedule, alleging the grandmother blocked contact. The grandmother counter-petitioned for sole legal custody (physical custody remaining with her) and other relief. After a fact-finding hearing and Lincoln hearings with the children, Family Court denied the mother’s request and granted the grandmother sole legal custody, leaving visitation to the parties’ agreement. The mother appealed.

2. Summary of the Opinion

3. Analysis

A. Precedents Cited

1) Threshold requirement: change in circumstances for modification

For the mother’s modification request, the court restated the baseline modification rule from Matter of Jennifer HH. v Alavanh II.: a party seeking to modify an existing custody/visitation order must first show a sufficient change in circumstances to warrant revisiting best interests. Although the opinion’s practical focus is the grandmother’s nonparent burden and the visitation remedy, the court framed both petitions within the standard two-step modification structure.

2) Nonparent custody: extraordinary circumstances as a gateway

The court relied on a line of Third Department cases emphasizing that a nonparent must prove extraordinary circumstances before a court may weigh best interests against a parent:

• Matter of Leslie LL. v Robert NN. — reiterated that extraordinary circumstances are a prerequisite to best-interests analysis and are evaluated cumulatively (surrender, abandonment, persistent neglect, unfitness, extended disruption of custody, or similar).
• Matter of Tasha AA. v Tammy DD. — applied the same gatekeeping structure; also later used here on the custody/cooperation point.
• Matter of McDevitt v Stimpson, lv denied 1 NY3d 509 [2004] — invoked for the proposition that a nonparent must clear the extraordinary-circumstances threshold.

3) Grandparents and “prolonged separation” under Domestic Relations Law § 72 (2) (b)

The opinion’s extraordinary-circumstances analysis turned on Domestic Relations Law § 72 (2) (b), as interpreted in:

• Matter of Amber B. v Scott C. — recognized that, for grandparents, extraordinary circumstances may be shown by a prolonged separation of at least 24 months during which the parent voluntarily relinquished care and control while the child resided in the grandparent’s household.
• Matter of Ronda A. v Jennifer A. — cited as additional support for finding extraordinary circumstances on similar facts of prolonged separation and relinquishment.

Applying those authorities, the Third Department deferred to Family Court’s credibility findings and affirmed that the mother’s near decade-long absence and sporadic interest constituted extraordinary circumstances.

4) Best interests and joint legal custody: inability to communicate

To affirm sole legal custody to the grandmother, the court relied on:

• Matter of Bradley D. v Andrea D. — joint decision-making becomes inappropriate where the relationship has deteriorated such that parties cannot maintain even a “modicum of communication and cooperation.”
• Matter of Tasha AA. v Tammy DD. — similarly supports converting joint legal custody to sole legal custody when cooperation is absent.

5) Visitation: limits on “as-agreed” orders and nondelegation

The opinion’s core remedial move is grounded in the principle that visitation is a judicial determination:

• Matter of Sarah I. v Ian J., lv denied 43 NY3d 904 [2025] — while a court cannot delegate visitation decisions to a party or child, it may order “as the parties may mutually agree” only if workable under the circumstances.
• Matter of Cecelia BB. v Frank CC. — reinforces the nondelegation concept and authorizes remittal for a “more definitive visitation schedule” and supportive resources to restore relationships.

The Third Department also cited cases illustrating the type of detailed directives Family Court should consider on remittal:

• Matter of Richard CC. v Lacey DD.
• Matter of Melissa H. v Jordan G.
• Matter of C.M. v Z.N.

6) Mootness upon a child turning 18

By footnote, the court cited Matter of Evelyn EE. v Jody CC. (and again Matter of Leslie LL. v Robert NN.) for the proposition that custody/visitation issues become moot as to a child who turns 18 during the appeal.

B. Legal Reasoning

1) Extraordinary circumstances: credibility and long-term relinquishment

The court’s threshold analysis is largely factual and credibility-driven: Family Court credited the grandmother’s testimony that the children lived continuously with her in Virginia since the 2016 order, with only one in-person visit early on that ended negatively, and only an isolated and distressing phone contact in 2021. The mother’s claims of repeated attempts to contact the children were found not credible.

On those findings, the Third Department held extraordinary circumstances were established through: (1) prolonged separation well beyond 24 months and (2) the mother’s voluntary relinquishment of care and control, evidenced by minimal contact and limited involvement in the children’s lives for nearly a decade. This satisfied Domestic Relations Law § 72 (2) (b) as described in Matter of Amber B. v Scott C..

2) Best interests: sole legal custody appropriate where joint custody is unworkable

Once extraordinary circumstances were shown, the court moved to best interests. The record supported that the children were stable and thriving with the grandmother, including progress in counseling and success in school and activities. Critically, the mother and grandmother were unable to communicate effectively—making joint legal custody impractical under Matter of Bradley D. v Andrea D.. Thus, the modification to sole legal custody for the grandmother was affirmed.

3) Visitation: “as-agreed” cannot function as a de facto denial of parenting time

The reversal centered on the practical effect of “as the parties may agree” where:

• the parties’ relationship was severely fractured (the same condition that justified sole legal custody),
• the grandmother testified she believed there should be no contact, and
• the grandmother had no plan—therapeutic or otherwise—to facilitate safe reconnection.

Given those facts, the Third Department deemed the arrangement “untenable” under Matter of Sarah I. v Ian J. and Matter of Cecelia BB. v Frank CC.. Importantly, the court treated the existence of a visitation provision as an implicit determination that some contact is appropriate; the defect was the lack of an enforceable, court-set structure. Accordingly, remittal was required for Family Court to set the amount, duration, location, and conditions of parenting time, and to consider additional relationship-rebuilding tools (phone/video, written contact, and therapeutic visitation).

C. Impact

1) Stronger guardrails against “constructive denial” via ambiguous visitation provisions

The opinion reinforces that “as-agreed” visitation is not a neutral administrative choice; in high-conflict cases—especially where the custodial nonparent opposes contact—it risks becoming an unreviewable gatekeeping mechanism. By labeling such circumstances “untenable” and ordering remittal, the Third Department signals that courts must craft enforceable schedules when agreement is unrealistic.

2) Increased use of structured, therapeutically supported reunification in nonparent custody settings

The court’s express mention of therapeutic visitation as an option to consider—despite Family Court’s concern about potential trauma—encourages lower courts to use clinically informed tools rather than leaving contact to the discretion of a resistant custodian. This is likely to matter in cases involving long separations, substance-use histories, and children in therapy.

3) Continued reliance on Domestic Relations Law § 72 (2) (b) for grandparents’ extraordinary-circumstances showings

The decision confirms the viability of § 72 (2) (b) as a clear evidentiary pathway for grandparents: prolonged separation (24+ months) plus voluntary relinquishment while children reside with the grandparent can satisfy the gateway requirement, shifting the case into best-interests balancing.

4. Complex Concepts Simplified

• Extraordinary circumstances (nonparent custody): A nonparent (including a grandparent) cannot get custody over a parent merely by showing “best interests.” The nonparent must first prove a serious justification—such as abandonment, unfitness, or a long disruption where the parent effectively gave up day-to-day care.
• Domestic Relations Law § 72 (2) (b): A statute that, in relevant part, recognizes that for grandparents, a long separation (at least 24 months) combined with the parent’s voluntary relinquishment while the child lives with the grandparent can establish extraordinary circumstances.
• Best interests of the child: A multi-factor, fact-specific assessment (stability, caregiving history, mental/emotional needs, cooperation between caretakers, etc.) used only after the proper threshold is met in nonparent cases.
• Legal custody vs. physical custody: Legal custody concerns decision-making (education, medical care, etc.); physical custody concerns where the child lives.
• Lincoln hearing: An in-camera interview of the child by the judge (outside the parents’ presence) to learn the child’s views while protecting the child from the pressure of open-court testimony.
• Nondelegation in visitation: The court—not a parent, custodian, or child—must decide whether visitation occurs and under what basic terms. Courts may allow flexibility (“as mutually agreed”) only when cooperation makes that workable.
• Remittal: The appellate court sends the case back to Family Court to issue a new order consistent with the appellate ruling (here, to craft a definitive visitation plan).

5. Conclusion

Matter of Justine N. v. Michelle P. affirms two core propositions in New York custody law: first, that grandparents can establish extraordinary circumstances through prolonged separation and voluntary relinquishment under Domestic Relations Law § 72 (2) (b); and second, that a court may not effectively outsource visitation to hostile parties or to a child’s wishes where agreement is unrealistic.

The decision’s practical significance lies in its remedial clarity: when the record shows “as-agreed” visitation is untenable, Family Court must impose an enforceable schedule and consider structured supports—potentially including therapeutic visitation—to promote a healthy and meaningful parent–child relationship while safeguarding the children’s welfare.