Imagine that you and I are on opposite sides of the “v” in a contested custody dispute. My client wants sole legal custody (a.k.a. sole decision-making) and your client wants joint legal custody (joint decision-making).
As a compromise, I tell you that my client will agree to meaningfully consult with your client about all major matters impacting the children, and if that still does not yield a resolution, my client will make the final decision.
You would be right to tell me something along the lines of “that’s de facto sole custody” and perhaps “are you kidding me?.” But according to the Appellate Division, Third Department’s recent decision in Alyssa P. v. Jeffrey P, 2026 NY Slip Op 04017 (June 25, 2026), in this hypothetical my position isn’t as off kilter as it may seem at first blush.
In Alyssa P., the divorced parents had two children, born in 2009 and 2012. Their separation agreement provided for joint legal and shared physical custody. In March 2023, the mother commenced a modification proceeding seeking sole legal and primary physical custody of the children. The trial court, finding no change in circumstances, dismissed the mother’s petition and the mother then appealed.
The decision recounts the mother’s testimony to the trial court that the parties’ “previously cooperative communication deteriorated significantly through the post-2020 period,” including the father’s “unilateral imposition of ‘boundaries,’ cessation of texting and refusal to accommodate reasonable scheduling requests, and accusatory or demeaning commentary.”
With respect to physical custody, the Third Department held as follows:
In our view, the court appropriately determined that, despite the acrimony between the parties, the children are doing exceptionally well in school and extracurriculars, receiving recognition in both arenas. Further, both parties are able to provide stable, nurturing homes; both are deeply involved in the children’s academic and extracurricular activities; and both foster the children's relationships with the other parent. We therefore decline to disturb the parties’ shared physical custody arrangement
Turning to the main event (decision-making), the Third Department stated that it “cannot ignore evidence of recurring impasses and unilateral actions demonstrating that the joint-decision structure has become strained.” To illustrate the breakdown in communication, the Third Department provides the following examples:
In particular, evidence suggesting that the father discontinued the younger child’s therapy sessions and was willing to prevent her from attending gymnastics based solely on the mother’s presence, along with proof of his unilateral act in purchasing the older child a cell phone, among other matters, show difficulty in collaborative decision-making.
The mother’s communications, by contrast, reflect a greater willingness to collaborate or compromise in decisions concerning the children. For example, the mother initiated a conversation with the father about purchasing a cell phone for the younger child for her birthday, which he refused to discuss outside of ‘a therapeutic setting where [they could] come to a full agreement on all the details’ but then proceeded to purchase a phone for the younger child without any further discussion.
And here is where the rubber meets the road: the decision then states that “In light of this evidence, we conclude that the children’s best interests are served by retaining the joint legal custody arrangement while granting the mother final decision-making authority in all parental disagreements.” I handwrote four question marks next to this sentence, because I thought that meant the mother was being granted de facto sole custody on appeal.
The decision immediately addresses what many of you may be thinking, and goes on to reject the dissent’s “characterization of our decision as having the practical effect of granting the mother sole legal custody, handing her a veto in contested decisions” because:
That view reduces joint custody to a parental power-sharing agreement, and, from there, assumes the mother will steamroll the father. We decline to treat that worst-case scenario as inevitable. In any event, we do not grant the mother sole or primary decision-making authority in general or with respect to any particular sphere of responsibility… Rather, the parties’ custody arrangement still requires them to act cooperatively and communicate productively in connection with all coparenting decisions, and we modify that arrangement only to permit the mother to resolve disputes over those decisions after both parties have engaged in good-faith, reasonable efforts to reach a joint decision and those efforts have failed.
I do not know about you, but I am somewhat at a loss here. When did “joint legal custody” contemplate that either parent would ultimately have final decision-making in the event of a dispute. You can of course write that into a separation agreement, but as a matter of law, how is that arrangement “joint legal custody” is my question.
The dissent did not find “that the record supports the majority’s grant of final decision-making authority to petitioner (hereinafter the mother), which ostensibly negates joint legal custody, at least from a practical point of view.” Rather, the dissent characterized the record as follows:
Although we recognize that the father, in some of his communications, was condescending, judgmental and wholly inappropriate in how he addressed the mother, it is our opinion that the proper remedy for this conduct is not to grant the mother final decision-making authority, which translates to veto authority over contested matters … given the positive impact the coparenting counseling was having on the parties during the pendency of the fact-finding hearing, we believe it would be prudent to order the parties to refrain from disparaging one another and to order coparenting counseling on an ongoing basis, to ensure that they are consistently improving their communication with one another and have a forum to discuss major decisions with continued support… In closing, the parents must recognize that they are fortunate to have such exceptional children. We challenge them to do better in their communications, joint decisions and respect for one another in the best interests of the children (emphasis added).
There is indeed a lot to digest from the dissent. I suggest there are two key takeaways from Alyssa P. that are worthy of consideration:
First, for better or worse, how we define “joint custody” under law has, at least in the Third Department, possibly entered a new chapter.
Second, how our clients communicate with each other about custody issues in texts or emails matters. The Third Department (dissenting opinion) goes out of its way to bring that point home when it challenges the parents to “do better in their communications.” The majority opinion also points to the mother’s testimony about the father’s unilateral imposition of “boundaries” and “cessation of texting.”
In the end, while we often focus so much on the “best interest” factors and other questions of law in a custody dispute, what is also of immense importance is how our clients—the parents—communicate with each other. That is where the role of “counseling” enters the fray, and to my mind it is just as if not more important than our role as the “zealous advocate.”
"Defining ‘Joint Custody’ Just Got More Complex," by Alan R. Feigenbaum was published in the New York Law Journal on August 27, 2026. Reprinted with permission.