The Volokh Conspiracy
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From B.S. v. A.S., decided Tuesday by New York trial court judge Jeffrey S. Sunshine:
The parties share join custody of their daughters—8 and 10 years old—and have diametrically opposed opinions about whether the children should be vaccinated against COVID-19. The mother-defendant filed an emergency application seeking, inter alia, the authority to vaccinat[e] the children.
During the growing worldwide Covid-19 pandemic, the divide between the parents has escalated to the point that judicial intervention is necessary.
The Court recognizes the seriousness of the issue and the tenor of the debate; however, the Court must exercise judicial restraint in honoring the prior stipulations entered into by the parties and by the rights of the parents to raise their children. Here, the Court will adhere to these sound legal principles and will not, under the unique facts and circumstances presented, become embroiled in the political-ideological arguments that divides these parties.
On April 9, 2020, a few weeks after a pandemic emergency was declared the mother commenced an action in Family Court, Kings County seeking modification of the parties' stipulation of Settlement and Judgment of Divorce to require the parties to comply with all state, city and federal social distancing protocols regarding COVID-19 [NYSCEF #23]. The parties resolved that application by entering into a consent stipulation dated April 10, 2020 [the "April 2020 agreement" which was so-ordered. That April 2020 agreement provided, as relevant here, as follows:
"The parties shall comply with all New York State and New York City issued guidelines related to COVID-19 and social distancing for the duration of the crisis [emphasis added]."
The court went in detail through the tension between the parties over masking, social distancing, and travel, and the mother's claims that the father violated the April 2020 agreement, and closed with this:
It is clear that the parties each hold strong opinions—opinions inapposite to one another—as to the efficacy of the COVID-19 vaccine. The parties each propose numerous complex frameworks and rationales for this Court to choose which option is in their children's best interest. The mother argues that health statistics, COVID variant surges in NYC, missed social interactions and the risk posed to the children due to the father's alleged non-compliance with COVID safety guidelines make it necessary to vaccinate the children. The father argues that he does not consent to the children receiving the vaccine because, he alleges, pharmaceutical producers received waivers against future litigation for unknown long-term effects.
Under the facts and circumstances presented, this Court need not at this time become embroiled in the specific disagreement between the parties on the issue of the COVID-19 vaccine. Nor, at this time, does the Court need to become embroiled in a fact-finding proceeding as to which set of experts the parties may offer are "right." As such, the immediate question presented to this Court is not whether the parties should vaccinate or not vaccinate these children: the immediate question presented is whether it is appropriate for the Court to continue joint custody on the limited issue of COVID health care or whether the Court must carve out a sphere of influence on this limited issue.
Here, the immediate issue before the Court is whether the relationship between the parties has deteriorated to the point where the level of acrimony makes joint decision making on the limited issue of the COVID-19 vaccination unsustainable.
Under the unique facts and circumstances herein where the parties already mutually agreed in a so-ordered stipulation on adopting the NYC and NYS guidelines for their family. The issue presented is whether joint custody on this issue remains viable if one of the parties subsequently violated that agreement. The mother raised questions of fact as to the father's compliance. The father did not appear to dispute the allegations raise: instead, the father contends that any non-compliance was not "dangerous" because the children did not contract COVID-19. He contends, in effect, that the mother's standard of proof must be that he jeopardized the children's health by any non-compliance.
The Court does not adopt the mother's position that based on this disagreement it is necessary, at this time, to consider a change of custody as to all medical decision making: both parties acknowledge that they have been successful in navigating all prior medical decisions for the children and the Court should attempt to preserve as much of the parties' prior agreement as possible. Similarly, the Court does not adopt the father's position that any change in custody related to medical decision making would be inappropriate because, he contends, the parties "only" disagree on this "one issue": this issue has wide ranging implications and should not be minimized.
It is possible that the parties remain able to communicate maturely and civilly and to cooperate with one another on all other issues but this one: that general ability does not preclude this Court from carving out a sphere of influence as to the issue where they are unable to do so particularly if the animosity is placing the children "in the middle" of the disagreement which is an issue of concern raised by the attorney for the children. The Court notes that "[s]ince weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved, the hearing court's findings are accorded deference, and will not be disturbed unless they lack a sound and substantial basis in the record."
One of the central requirements of joint custody is the ability of parents to cooperate with one another. Here, initially, it appears that even though the parties did not agree on how to navigate the pandemic situation they were eventually successful in reaching an agreement on how to cooperate moving forward which they memorialized in the April 2020 so-ordered agreement in which they voluntarily and contractually bound themselves to a specific set of externally determined guidelines. This is an example of parties successfully engaging in joint custody; however, the mother now alleges that the father has refused to comply with what he previously agreed to do.
The mother alleges that the father unilaterally and selectively chooses which geographic locations where he complies with following the NYC and NYS guidelines: this allegation is not disputed by the father in his affidavit in opposition. The parties chose to bind themselves in a contract as to how they will conduct themselves during this pandemic.
These allegations require this Court to consider whether there has been a change in circumstances in which the father became unwilling or unable to cooperate in following the guidelines he voluntarily adopted in the April 2020 agreement. Furthermore, the Court must consider whether the father has become unwilling or unable to communicate with the mother on this issue in a mature and civilized manner or whether the level of acrimony has made it impossible for him to do so on this limited issue.
The mother attached text messages to her application in which she appears to ask the father about compliance with the April 2020 so-ordered agreement—Would the children be wearing masks indoors? Would the children be socially distancing when around unvaccinated non-household members? Etc.—and it appears that the father used these questions as an opportunity to call her demeaning names and to engage in ad hominum attacks on her social views. It appears where the parties agreed to a joint approach to adopting the NYC and NYS guidelines but then if one of them stopped following those guidelines it could place the children in the untenable position of being "in the middle" and not in their best interest.
If it is true that the father is now unable or unwilling to cooperate with his prior consent agreement to follow all NYC and NYS guidelines, is it not proof that joint custody on this issue is no longer appropriate? Whether or not the father stopped complying with the April 2020 agreement requires an evidentiary hearing as does the question, inter alia, of whether the father's use of disparaging name calling of the mother when asked about his compliance demonstrates that he has become unable to communicate with the mother on this issue in a "mature and civilized manner" and whether the level of acrimony makes it impossible for the father to continue to share joint custody on this issue. Under the most recent Appellate Division, Second Department caselaw the Court finds that the mother has alleged sufficient change of circumstances demonstrating a need for a change of custody to ensure the best interests of these children.
The evidentiary hearing will address the following limited issues: 1) whether the level of animosity on the issue of COVID has become such that either party has demonstrated an unwillingness or inability to communicate without animosity regarding the best interests of the children on the medical decision making as to COVID issues; and 2) whether the father has cooperated and complied with the April 2020 so-ordered agreement to follow NYC and NYS guidelines. Neither of these questions require the testimony of "COVID experts": the Court need only hear from the plaintiff and the defendant…. The parties may seek permission to call fact witnesses on these limited issues of compliance with the April 2020 agreement and communication between the parties on this issue. The Court need not hear, at this time, any testimony as to the merits of either parties' opinions as to the issue of COVID as that issue is not presently before the Court.
The Court notes that, on consent of all counsel, the Court was notified by e-mail dated December 16, 2021 that after oral argument of this application, one of the children (age 10) tested positive for COVID-19 and is in quarantine with the father. The father must make arrangements to assure that the child (and or children) are shielded from this proceeding and any virtual appearances that may take place during the time with the child or children are in his care. The same is true for the mother if the children are in her care during any virtual proceedings.
Given the seriousness of the issue presented, the Court will adjourn the currently calendared matters from January 3, 2022 and will conduct a virtual evidentiary hearing on the limited issues defined herein-above on January 3, 2022 at 10:00 a.m. The Court will schedule the in camera with these children upon notice to the attorney for the children. If the children have questions about this proceeding they should be directed to speak with their attorney….