Introduction

In Matter of Amber EE. v. Kalam EE., 2025 NY Slip Op 04943 (3d Dept Sept. 11, 2025), the Appellate Division, Third Department, affirms a Family Court order that: (1) modified a very recent joint legal custody arrangement to award the mother sole legal and primary physical custody, (2) adjudicated the father in civil contempt for violating a custody order's “Children’s Bill of Rights” by using a child as a messenger and disparaging the mother during exchanges, with counsel fees imposed as a fine under Judiciary Law § 773, and (3) sustained a family offense finding of harassment in the second degree, warranting continuation of an order of protection for the mother (with a challenge to the extension to the children deemed moot by expiration).

The opinion is notable for crystallizing three practical rules in New York family practice:

• A rapid post-order deterioration—here, within two weeks—marked by repeated police involvement at exchanges and a breakdown in parental communication can constitute a “change in circumstances” sufficient to revisit legal custody and award sole decision-making authority.
• Violating “Children’s Bill of Rights” provisions—specifically, using a child to carry messages and engaging in disparagement at exchanges—supports civil contempt and the imposition of a counsel-fee fine under Judiciary Law § 773, even absent proof of actual monetary loss.
• A course of conduct comprising repetitive, purposeless communications, misuse of exchanges to force direct contact in violation of an order of protection, and repeated unfounded CPS reports can amount to harassment in the second degree (Penal Law § 240.26[3]) proven by a preponderance of the evidence in a Family Ct Act article 8 proceeding.

Parties: The mother (petitioner-respondent on appeal) sought modification and protective relief. The father (respondent-appellant) appealed from both the custody modification and the order of protection.

Summary of the Opinion

After a fact-finding hearing, Family Court found that the parents’ inability to communicate and the father’s escalating hostility created a change in circumstances shortly after entry of a prior joint legal custody order. Concluding that joint legal custody was “no longer workable,” the court awarded the mother sole legal custody and primary physical custody, and structured the father’s parenting time with a condition that exchanges be prompt and limited to “brief goodbyes.”

The court also found the father in civil contempt for violating the custody order’s “Children’s Bill of Rights” (no child-as-messenger; no disparagement), and ordered him to pay a portion of the mother’s counsel fees as a fine pursuant to Judiciary Law § 773. Finally, the court determined that the father committed the family offense of harassment in the second degree, extended an order of protection in favor of the mother, and expanded the stay-away provisions to protect the children while they were in the mother’s care. On appeal, the Third Department:

• Affirmed the finding of a change in circumstances despite the brief two-week interval between orders.
• Affirmed the best-interests determination awarding the mother sole legal and primary physical custody, with “brief goodbye” exchange limits.
• Affirmed the civil contempt finding and the award of counsel fees as a permissible fine under Judiciary Law § 773.
• Affirmed the harassment finding and continuation of the order of protection. It held that the appeal of the OP was not moot because of enduring consequences of a family offense adjudication, but the challenge to extending protection to the children was moot due to expiration by its terms.
• Rejected the father’s remaining arguments, including claims regarding meaningful representation by counsel and the attorney for the children.

Analysis

Precedents Cited and Their Influence

• Matter of Ashley UU. v Ned VV., 235 AD3d 1200 (3d Dept 2025): Reiterates the two-step modification test—change in circumstances and best interests—and sets out the civil contempt elements: knowledge of a clear order, disobedience, and prejudice to the opposing party’s rights. The court relied on Ashley UU. both to find a post-order change in circumstances and to frame the contempt analysis.
• Matter of Christine EE. v David FF., 235 AD3d 1156 (3d Dept 2025): Confirms the same two-step modification framework.
• Ricky SS. v Christine SS., 2025 NY Slip Op 04602 (3d Dept 2025): Supports finding a change in circumstances where parental communication breaks down and law enforcement becomes involved in exchanges, even over a short timeframe. The Third Department analogized the police-assisted exchanges here to that case.
• Matter of Kelly AA. v Christopher AA., 240 AD3d 1011 (3d Dept 2025): Further supports the proposition that repeated exchange conflicts and inability to communicate can constitute a change in circumstances.
• Matter of Michael M. v Makiko M., 238 AD3d 1304 (3d Dept 2025) and Matter of Michelle EE. v John EE., 235 AD3d 1121 (3d Dept 2025): Recite the familiar constellation of best-interest factors—stability, parental fitness, capacity to foster relationships, and ability to meet developmental needs.
• Matter of Kyle I. v Kandice K., 232 AD3d 1074 (3d Dept 2024) and Matter of Matthew L. v Sierra N., 229 AD3d 866 (3d Dept 2024), lv denied 42 NY3d 907 (2024): Emphasize appellate deference to Family Court’s credibility assessments and “sound and substantial basis” review.
• Matter of Ellen TT. v Parvaz UU., 178 AD3d 1294 (3d Dept 2019), lv denied 35 NY3d 905 (2020); Matter of Ryan XX. v Sarah YY., 175 AD3d 1623 (3d Dept 2019); Matter of Dorsey v De’Loache, 150 AD3d 1420 (3d Dept 2017): Endorse tailored, exchange-focused conditions—such as “brief goodbyes”—to manage high-conflict co-parenting and reduce children’s exposure to parental disputes.
• Matter of John EE. v Jalyssa GG., 222 AD3d 1219 (3d Dept 2023): Cited for the clear-and-convincing standard and prejudice requirement in civil contempt.
• Matter of Khan v Khan, 140 AD3d 1252 (3d Dept 2016); Matter of Paul A. v Shaundell LL., 117 AD3d 1346 (3d Dept 2014), lv dismissed & denied 24 NY3d 937 (2014); Vider v Vider, 85 AD3d 906 (2d Dept 2011): Establish that when no actual loss is proven, Judiciary Law § 773 permits a fine up to costs and expenses plus $250, and that such a fine may include counsel fees associated with prosecuting the contempt.
• Matter of Samah DD. v Mark VV., 235 AD3d 1116 (3d Dept 2025); Matter of Erica II. v Jorge JJ., 165 AD3d 1390 (3d Dept 2018); Matter of Marianna K. v David K., 145 AD3d 1361 (3d Dept 2016): Provide the family offense standards—preponderance of the evidence, deference to credibility, and the definition of harassment in the second degree as a purposeless, alarming or seriously annoying course of conduct (Penal Law § 240.26[3]).
• Matter of Pauline DD. v Dawn DD., 212 AD3d 1039 (3d Dept 2023), lv denied 39 NY3d 915 (2023): Illustrates how a pattern of conduct can satisfy harassment’s “course of conduct” element in the family offense context.
• Matter of Smith v Morrison, 196 AD3d 772 (3d Dept 2021): Supports the “enduring consequences” doctrine—appeals from expired orders of protection are not moot if the adjudication carries lasting collateral effects.
• Matter of Tina X. v Thomas Y., 233 AD3d 1272 (3d Dept 2024); Matter of Jacob L. v Heather L., 228 AD3d 1191 (3d Dept 2024): Hold that challenges to expired OP provisions can be moot when the order has terminated by its own terms.
• Matter of Samantha E. v Nicholas F., 233 AD3d 1295 (3d Dept 2024); Matter of Michelle L. v Steven M., 227 AD3d 1159 (3d Dept 2024): Provide support for deferring to Family Court’s credibility findings in contempt and related family-law determinations.

Legal Reasoning

1) Change in circumstances despite a two-week interval

The court acknowledges the “brief duration” between the December 2022 custody order and the January 2023 petitions, yet holds that the record shows “a clear breakdown in the parents’ relationship” and repeated police involvement at exchanges. In the Third Department’s view, such rapid deterioration—especially when exchange enforcement requires law enforcement—satisfies the threshold change-in-circumstances requirement. This signals that temporal proximity alone does not bar modification if post-order events render joint legal custody unworkable.

2) Best interests favoring sole legal custody and constrained exchanges

Applying familiar best-interest factors, the court finds both parents loving and fit, but concludes that joint legal custody is “no longer workable” due to persistent communication failure and exchange conflict. To minimize children’s exposure to conflict, the court endorses an exchange protocol requiring prompt transitions with only “brief goodbyes,” a remedy grounded in prior Third Department cases. The mother’s sole legal and primary physical custody secures decision-making stability; the father retains structured parenting time conditioned to reduce friction.

3) Civil contempt for violating the “Children’s Bill of Rights,” with counsel-fee fine under Judiciary Law § 773

The custody order incorporated a “Children’s Bill of Rights,” including the child’s right not to be used as a messenger and to be shielded from parental warfare. It also required that the parties communicate exclusively via the “Talking Parents” application and avoid fighting or disparagement in the children’s presence. The father did not dispute knowledge of these clear terms.

The credited facts included:

• After the mother advised through the approved app that a child’s jacket could not be brought to that evening’s exchange, the older child nonetheless asked the mother about the jacket at the exchange and then reported back to the father—effectively carrying a message.
• The father then yelled across the parking lot regarding the jacket, the exchange failed, and law enforcement responded.
• At a subsequent exchange, the father called the mother a “liar” within the children’s earshot.

On these facts, Family Court found, and the Third Department affirmed, that the father violated the order by using the child as a messenger and engaging in disparagement during exchanges. For civil contempt, while actual monetary “loss or injury” was not proven, Judiciary Law § 773 authorizes a fine not exceeding the complainant’s “costs and expenses, and $250 in addition thereto,” which may include counsel fees. The appellate court upheld the award of the mother’s counsel fees related to litigating the violation petition as a permissible § 773 fine.

4) Family offense: harassment in the second degree and continuation of the order of protection

In an article 8 proceeding, the burden is a fair preponderance of the evidence. Harassment in the second degree under Penal Law § 240.26(3) requires proof of a course of conduct undertaken with intent to harass, annoy, or alarm, that seriously annoys or alarms, and serves no legitimate purpose.

Crediting the mother’s testimony, the court found:

• Multiple CPS contacts initiated by the father and his wife with allegations later deemed unfounded.
• Lengthy, repetitive messaging about the jacket despite prior communication that it could not be brought, followed by using the child as a messenger at the exchange.
• Insistence on in-person communication at the exchange in violation of an existing order of protection limiting communications to the app, precipitating a failed exchange and distress to the children.
• Calling the mother a “liar” within the children’s vicinity.

The Third Department held that this pattern constituted a purposeless course of conduct that seriously annoyed or alarmed the mother, satisfying harassment in the second degree. It affirmed continuation of the order of protection for the mother. The father’s challenge to extending the stay-away provisions to the children while in the mother’s care was declared moot due to expiration of the order by its own terms. However, consistent with “enduring consequences” precedent, the appeal from the family offense adjudication itself was not moot.

5) Appellate deference

As is customary in custody, contempt, and family offense matters tried without a jury, the Third Department stressed deference to Family Court’s credibility findings. The court specifically noted that the father and his wife were unable to answer questions directly without self-serving embellishments, which supported crediting the mother’s testimony across the custody, contempt, and family offense determinations.

Impact and Practical Significance

• Post-order modification timing: This opinion underscores that modification may be warranted even immediately after an order if joint decision-making proves unworkable in practice. Police involvement at exchanges and the inability to communicate are potent indicators of a qualifying change in circumstances.
• “Children’s Bill of Rights” as enforceable: Incorporation of these provisions into custody orders carries teeth. Using a child as a messenger or disparaging a parent during exchanges can support civil contempt findings and fines, including counsel fees limited to the costs and expenses of the contempt proceeding.
• Exchange-management remedies: Courts will condition parenting-time exchanges (e.g., “brief goodbyes,” prompt transitions) to protect children from conflict. Counsel should proactively propose tailored exchange protocols in high-conflict cases.
• Course-of-conduct harassment in family court: Repeated, baseless CPS reports, persistent unnecessary messaging, and violations aimed at forcing prohibited contact can cumulatively meet the harassment standard under Penal Law § 240.26(3) in article 8 proceedings.
• Orders of protection and mootness: Even if an order of protection expires, an appeal may remain viable due to the lasting stigma and collateral legal consequences of a family offense adjudication. Challenges to specific expired terms (e.g., temporary extension to children) may nonetheless be moot.
• Counsel’s role and client guidance: Attorneys should caution clients that seeming “minor” provocations (e.g., a jacket dispute) can have outsized consequences when used to circumvent communication protocols, involve children in adult disputes, or trigger in-person contact contrary to orders.

Complex Concepts Simplified

• Change in circumstances: A post-order development that materially affects the children’s welfare or the viability of the existing custody arrangement. Here, it was the rapid collapse of parental communication and repeated police involvement at exchanges.
• Best interests of the child: A multi-factor assessment focusing on stability, parental fitness, willingness to foster the child’s relationship with the other parent, and ability to meet the child’s needs. It is not a parental “fault” inquiry but a child-centered one.
• Joint vs. sole legal custody: Joint legal custody requires effective parental communication for shared decision-making; sole legal custody vests decision-making authority in one parent when joint decision-making is unworkable.
• Children’s Bill of Rights (in custody orders): Commonly includes child-centered rules (no using children as messengers, no disparagement, shielding children from parental conflict). They are enforceable when incorporated into a court order.
• Civil contempt (Family Court): Requires proof, by clear and convincing evidence, that the contemnor knew of a clear order, disobeyed it, and prejudiced the other party’s rights. Monetary loss need not be shown to impose a fine under Judiciary Law § 773.
• Judiciary Law § 773 fine: When no actual monetary loss is shown, a court may impose a fine not exceeding the complainant’s costs and expenses (including counsel fees) and $250 in addition, typically tethered to the costs of prosecuting the contempt.
• Family offense proceeding (article 8): A civil proceeding to determine if a “family offense” (e.g., harassment) occurred. The standard is preponderance of the evidence. Relief includes orders of protection.
• Harassment in the second degree (Penal Law § 240.26[3]): A course of conduct, intended to harass/annoy/alarm, that seriously annoys or alarms and serves no legitimate purpose. It can be established by repetitive acts, messages, or conduct at exchanges.
• Mootness and “enduring consequences”: Even if an order of protection expires, an appeal may proceed when the family offense adjudication has lasting consequences (e.g., in future litigation or collateral contexts). By contrast, challenges to certain expired terms may be moot.

Conclusion

Matter of Amber EE. v. Kalam EE. delivers a clear message for high-conflict co-parenting: When joint decision-making immediately falters, particularly with police-impacted exchanges and a breakdown in communication, courts will not hesitate to transition to sole legal custody in the children’s best interests. The decision also reinforces that “Children’s Bill of Rights” provisions are enforceable; using a child to communicate between parents or disparaging the other parent in the children’s presence can support civil contempt and counsel-fee fines under Judiciary Law § 773. Finally, it affirms that a pattern of purposeless, harassing conduct—including repeated unfounded CPS reports and efforts to force prohibited, in-person contact—can constitute harassment in the second degree, justifying continued protective orders.

Key takeaways:

• Immediate post-order conflict can itself be a “change in circumstances.”
• Courts will tailor exchange protocols to insulate children from parental conflict, including “brief goodbyes.”
• Contempt remedies in Family Court can include counsel fees as fines even without proof of actual monetary loss.
• Course-of-conduct harassment is a flexible tool to address repetitive, purposeless, and boundary-violating behavior.
• Appeals from expired OPs may persist due to the enduring consequences of a family offense adjudication.

For practitioners, the opinion underscores the importance of advising clients to adhere strictly to communication protocols, avoid involving children in adult disputes, keep exchanges short and neutral, and reserve CPS reporting for genuinely substantiated concerns. Courts will protect children’s stability and emotional well-being with decisive, enforceable orders when parental conflict threatens to overwhelm co-parenting arrangements.

Case Metadata

Citation: Matter of Amber EE. v. Kalam EE., 2025 NY Slip Op 04943 (3d Dept Sept. 11, 2025)

Court: Appellate Division of the Supreme Court, Third Department, New York

Panel: Lynch, J.P., Ceresia, Fisher, Powers, and Mackey, JJ. Opinion by Powers, J.

Disposition: Orders affirmed, without costs.