Divorced Parents’ Tension About COVID Protections, and Possible Violation of Stipulated Agreement, May Lead to Shift from Joint Decisionmaking on Vaccination

Start at B.S. v. A.S.Jeffrey S. Sunshine of New York, judge at the New York Trial Court, made Tuesday’s decision.

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. A mother-defendant applied for an emergency order seeking to, Inter aliaThe authority to vaccine[e]The children.

The divide between parents during the worldwide Covid-19 epidemic has reached a point where judicial intervention may be necessary.

While the Court acknowledges the importance of this issue and its tenor, it must be careful to respect the prior agreements made by both parties as well as the parental rights regarding the care of 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.”

The mother initiated an action in Family Court Kings County on April 9, 2020 to seek modification of her stipulation of Settlement. She also sought to have the Jugment of Divorce modified to make it mandatory that the parties comply with COVID-19 protocols. [NYSCEF #23]. That application was resolved by the parties signing a consent agreement 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].”

After examining the court’s detailed investigation of the conflict between the parties regarding travel and masking, social distancing and social distancing, the judge concluded with the following:

It is clear that the parties each hold strong opinions—opinions inapposite to one another—as to the efficacy of the COVID-19 vaccine. For the Court’s consideration, each party has proposed a number of complicated frameworks and reasonings. Mother claims that the need to vaccine the children is based on health statistics, COVID variants surges in NYC and missed social interactions as well as the danger posed by the father’s supposed non-compliance of COVID safety guidelines. He claims that the father did not agree to his children being vaccinated because he received waivers from pharmaceutical companies against potential litigation regarding unknown long-term consequences.

Based on all the circumstances and facts, the Court does not need to get involved in specific disputes between parties over the COVID-19 issue. The Court does not need to get involved in fact-finding proceedings as to the “right” set of experts that the parties might offer. Therefore, the Court’s immediate concern isn’t whether these parties should vacinate the children or not. The Court needs to determine whether joint custody is an appropriate option for COVID and whether it makes sense to allow the Court to exercise a limited amount of control over this issue.

This Court will immediately decide if there is a breakdown in the relationship of the parties to the extent that it makes the joint decision on the COVID-19 issue untenable.

The unique circumstances and facts of this case show that the parties had already reached an agreement in a court-ordered clause on the adoption of the NYS and NYC guidelines for their families. It is unclear whether the agreement on joint custody regarding this matter will be valid if either party violates it. Mother raised concerns about the father’s compliance. He did not dispute these allegations. Instead, he claimed that non-compliance with the agreement was not dangerous because COVID-19 did not affect the children. According to him, the standard of proof for the mother must be that any noncompliance could jeopardize the health and safety of her children.

The Court is not going to adopt the mother’s view that it would be necessary for them to change their custody based on these disagreements. AllMedical decision-making: Both parties admit that they are able to navigate all previous medical decisions regarding the children. The Court should preserve as much as the prior agreements as possible. In the same way, the Court doesn’t adopt the fathers position. AnyChanges in custody related medical decision making are inappropriate, because he claims the parties “only” disagree on “one issue”. This issue, which has broad implications, should not be reduced.

Although it’s possible for both parties to remain capable of communicating maturely and civilly, and to work with one another on other issues than this issue; that ability doesn’t preclude the Court from creating a sphere in which they can influence the matter. This Court is particularly allowed to intervene if the animosity puts the children “in-the middle”, which would be an issue raised by the attorney. According to the Court, “[s]In order to weigh the relevant factors for a custody determination, it is necessary that the credibility and sincerity between the parties be evaluated. The findings of the hearing court are given deference and they will not change unless there is a solid and substantial record.

A parent’s ability to collaborate with their child is one of the key requirements for joint custody. Although the parents initially did not reach an agreement about how they would navigate the pandemic, they eventually came to an agreement. This was reflected in their April 2020 agreement, in which they contractually and voluntary agreed to follow a set of guidelines. Although this is a good example of joint custody, the mother alleges the father refuses to honor the agreements he made previously.

Mother claims that her father selects geographic locations in which he will comply with the NYS and NYC guidelines. This allegation has been backed up by his opposition affidavit. Both parties agreed to enter into a contract regarding how they would conduct themselves during the pandemic.

This Court must consider these allegations to determine if there was a change of circumstances that caused the father to become unwilling or incapable to follow the guidelines that he agreed to in April 2020. The Court should also consider whether or not the father is unable or unwilling to talk to the mother in civilized and mature ways about this matter.

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? What would the impact of children being socially distant from non-vaccinated household members on their health? 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 against her social views. The parties appear to have agreed on a common approach to adopting NYS and NYC guidelines. However, if one party stops following the guidelines, it could put the children in an untenable situation of “in the middle”, which is not best for their interests.

It is possible that the father no longer wants to comply with his previous consent agreement. This is evidence that joint custody is not appropriate. An evidentiary hearing must be held to find out if the father stopped complying in April 2020. It includes inter aliaThe question of whether or not the father has used disparaging language against the mother to ask about her compliance shows that he is unable to talk to the mother in a mature and civilized way on the issue. Also, whether or not the level of acrimony renders it impracticable for him to keep joint custody of this matter. According to the latest Appellate Division Second Department caselaw, the Court found that the mother had alleged enough change in circumstances to warrant a change in custody.

These are the issues that will be addressed at an evidentiary hearing Only limited issues1) Whether animosity has grown to the point that one party is unable or unwilling to discuss COVID matters with the other; 2) if the father cooperated in observing the April 2020 order to adhere to NYS and NYC guidelines. Neither of these questions require the testimony of “COVID experts”: the Court need only hear from the plaintiff and the defendant…. These limited questions of compliance and communication may be raised by the parties. As COVID is not in the Court’s immediate jurisdiction, it does not require the Court to hear testimony on the merits.

Court observes that on December 16, 2021 the Court received an email containing information by electronic mail stating that one of the 10 children tested positive for COVID-19. The father is now in quarantine. He must arrange for the protection of the child(s) and/or children from any proceedings or virtual appearances during his custody. If the child or children are under the care of the mother during virtual proceedings, the same applies.

Due to the importance of this issue, the Court will suspend the current calendared cases from January 3, 2022. VirtualEvidentiary Hearing on the Limited issuesThis Court will schedule the hearing at 10 a.m. on January 3, 2022. The Court will plan the in cameraThese children should be notified by the attorney for their welfare. If the children have questions about this proceeding they should be directed to speak with their attorney….