Alan R. Feigenbaum ●

New York Law Journal, August 27, 2026 —

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.

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