Custody litigation in New York turns on a fundamental question: what is in a child’s “best interest”? Ask matrimonial lawyers across New York, and you will find a range of opinions on whether and to what extent courts can make that determination.
That brings us to the Honorable Yael T. Wilkofsky’s recent decision in Anonymous v. Anonymous, 2026 NY Slip Op 51213(U) (Sup. Ct., N.Y. Cty.). The decision demonstrates excellence in how New York courts can and should try to tackle the very difficult, prevalent aspect of custody disputes involving a child who is estranged from a parent.
In Anonymous, the defendant-mother moved for an order compelling the plaintiff-father to comply with the therapeutic recommendations of “Dr. Y” by making the parties’ 14-year-old daughter, “H.D.,” available to meet with Dr. Y on a date certain as determined by Dr. Y.
In the parties’ 2024 Amended Parenting Agreement (the “agreement”), Article V, they agreed to retain a “case manager” (Dr. Y), to “improve the relationship between the mother” and H.D “with the aspirational goal of resolving the estrangement between” them.
Notably, Article V reads, in part: “Any recommendation of the case manager shall be timely implemented unless one of the parties obtains a stay of such recommendation from the Supreme Court of the State of New York, County of New York” (emphasis added).
Dr. Y recommended a “limited, structured meeting” with H.D., to, among other things “assess what type of support, if any, [H.D.] might find acceptable.” Notably, Dr. Y’s recommendation stated that the purpose of the meeting “would not be” to provide “traditional psychotherapy…or pressure H.D..” The father did not make H.D. available for the meeting with Dr. Y, in part because “H.D. does not want to participate in the proposed meeting.”
Additionally, Article IV of the Amended Parenting Agreement provides that if the parties cannot agree on a “Major Decision”—which includes disputes over “non-routine mental health treatment”—after a “Neutral Consultation Procedure” and “one session with the case manager,” the “father shall make the particular major decision.”
Once again, divorce law turns to contracts 101 to resolve the issue. As the decision notes, “when parties set down their agreement in a clear, complete document, their writing should…be enforced according to its terms” (citation omitted).
As the court explains, Dr. Y’s recommendation was not a “major decision” because it “did not constitute a recommendation for non-routine mental health treatment, such as emergency psychiatric hospitalization.”
Further, Dr. Y was clear that the purpose of the “limited, structured meeting would not be to provide H.D. traditional psychotherapy” but rather to “assess what, if any, plan could be implemented that H.D. would feel comfortable with that would work toward bettering H.D.’s relationship with the [mother].”
The entire premise of the Amended Parenting Agreement suggests that Dr. Y’s recommendation is what the parties envisioned would, in fact, be routine. Indeed, the agreement states, in part, that “The Mother enters into this Agreement in her earnest desire and hope that the arrangement agreed to herein will better foster reunification and restoration of her relationship with [H.D.].” That “arrangement” specifically included the involvement of Dr. Y; in fact, an entire section of the agreement is titled “The Role of the Case Manager,” which includes that Dr. Y “may recommend mental health treatment protocols.”
Notably, the argument made by the father that the agreement’s alleged delegation of power to Dr. Y is unenforceable was deemed “without merit” because under the agreement, if a party disagrees with Dr. Y’s recommendation, that party can move for a stay, i.e., “the court has the final decision-making authority as to what is in H.D.’s best interests.”
Also worth noting as it relates to the ongoing practice tip to be over-inclusive and overly detailed when drafting agreements: the Attorney for the Child argued, inter alia, that her client did not want to meet with Dr. Y. The court’s response was as follows:
the parties could have included in the Agreement that any contact recommended between H.D. and the case manager is left to H.D.’s discretion, but they did not do so. Therefore, the court cannot rewrite the parties’ agreement or set aside the portions of the Agreement that have become inconvenient or difficult to implement.
This is worth noting for any of us as we draft agreements involving estrangement issues.
Having read this article thus far, you might think (as I did) that the mother’s motion would be granted. But the court’s order is more nuanced, and reflects, to my mind, a laudable recognition that to truly protect the best interest of a child, our courts should be receptive to the receipt of more (not less) information that might provide further context and guidance. With that in mind, the court’s order provides as follows:
ORDERED that, in accordance with Article V of the parties' Agreement, the plaintiff shall, within 30 days, implement the recommendations made by Dr. Y in her letter dated February 27, 2026, which includes making H.D. available to meet with Dr. Y for a limited, structured meeting, or, in the alternative, the plaintiff shall, within 30 days, move this court for (1) a stay of Dr. Y's recommendation(s); and (2) a determination that the plaintiff need not comply with Dr. Y's recommendation(s) on account of the recommendation(s) being inappropriate and/or contrary to H.D.'s best interest. (emphasis added).
If that isn’t the best example, in 2026, of a New York court going the extra mile to ensure fairness and due process to both parties in an effort to permit as comprehensive a record as possible to protect a child’s best interest, I don’t know what is. Bravo.
"Matrimonial Law and Contract Law: Forever Intertwined," by Alan Feigenbaum was published in the New York Law Journal on September 24, 2026.