Custody and Visitation

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The mother had refused to agree to the vaccination of the children, resulting in one child being prohibited from school. In a March 30, 2022, decision in Matter of Soper v. Soper, the Appellate Division, Second Department, affirmed the modification of a custody stipulation to give the father sole decision-making authority with regard to the children’s medical care.

The parties were the formerly-married parents of three children. Pursuant to their 2018 custody and parental access stipulation that was incorporated but not merged into their 2019 judgment of divorce, the parties agreed to joint legal custody of the children. They agreed to defer medical decisions for the children to specified pediatricians.Continue Reading Refusal to Vaccinate Children Results in Change of Decision-Making

Is resolving a disagreement between parents as to whether to vaccinate a child against Covid too “political” to be decided? Three recent decisions tackle this issue. The Court may shield itself from making the bottom-line decision by deciding which parent should decide.

Should deciding who will be the decision-maker be the rule when parents disagree; or should parents be able to turn to the courts for the answer to one question without changing how they will make decisions on other questions in the future?

In other contexts, judges have been tasked with making literal life-and-death decisions. On occasion, they must decide whether to override the parents’ decision to discontinue life-sustaining treatment of their terminally ill minor child. See, Matter of DH,  15 Misc. 3d 565, 834 N.Y.S.2d 623 (Sup. Ct. Nassau Co. 2007). In Matter of Matthew V. (Lynette G.), 59 Misc. 3d 288, 68 N.Y.S.3d 796 (Fam. Ct. Kings Co. 2017), the Court transferred decision-making authority from the mother of a 14-year-old child to the child services agency for the purpose of consenting to chemotherapy treatment to which the mother was opposed.

However, there seems to be a different approach to resolving parental conflicts because of the current political climate.Continue Reading To Vaccinate Or Not To Vaccinate — That Is The Question . . . But Will A Court Answer It?

It is in the best interests of a three-year-old daughter for the father and anyone regularly supervising his access to be vaccinated against COVID-19 or else undergo regular testing. So held New York County Supreme Court Justice Matthew F. Cooper in his October 7, 2021 opinion in C.B. v. D.B, directing that the father’s in-person parental access with the child be suspended until such time as he did so.

The Court noted that historically vaccines almost universally embraced as a means of protecting ourselves and our children from deadly or debilitating disease. With Covid-19, most people, heeding expert medical opinion, have availed themselves of vaccines that promise not only to protect them and others from the ravages of the disease, but ultimately to completely vanquish the virus. Unfortunately, for Justice Cooper, a sizeable minority, incomprehensibly seizing upon misinformation, conspiracy theories, and muddled notions of “individual liberty,” have refused all entreaties to be vaccinated.

In this divorce action, the issue was not one of whether the child should be vaccinated; she is still too young to receive any of the vaccines. Nor was it one of whether the Court could require an adult to be vaccinated; to do so would stretch the authority of a matrimonial court to unprecedented lengths.

Here, the parties were married in 2015, and their child, a daughter, was born in 2018. The parties’ high-conflict divorce action was commenced by the wife in 2019. Based upon the wife’s allegations of the husband’s history of substance abuse and untreated mental health issues, and significant periods where he had not seen the child at all, Justice Cooper directed that the husband have daytime access every other weekend visitation, but supervised, first only by Comprehensive Family Services (CFS), but later by his parents.Continue Reading Dad’s Visits Conditioned on Covid Vaccination or Testing

Is a divorce settlement agreement that mandates that the children attend school within a particular school district satisfied by the children being home schooled within that district? Maybe, held the Third Department in its June 17, 2021 decision in Matter of John U. v. Sara U.

The parties were the divorced parents of two children (born in 2010 and 2012). They entered a separation agreement in October 2017, which was modified in September 2019. The agreement provided for joint legal custody and shared physical custody of the children. As is here relevant, it contained a provision that:

[s]o long as the [father] maintains a residence in [a certain school district,] the children shall continue to attend school within [that school district] unless both parties expressly agree in writing to change the schools of the children.

Prior to the 2019-2020 school year, the children had attended a certain public elementary school in that school district. The children had a religious exemption from vaccination. After a June 2019 change in state law eliminated such religious exemptions for students (see Public Health Law § 2164), and after the district’s denial of the mother’s requests for medical exemptions, the unvaccinated children were removed from their school in September 2019 and the mother began home schooling instruction at her home.Continue Reading Is Home-Schooling “Attending” School?

Can a court order a parent to impose discipline on children who voluntarily refuse to engage in court-ordered visitation with the other parent? Yes, said Monroe County Supreme Court Justice Richard A. Dollinger in his September 18, 2020 opinion in Matthew A. v. Jennifer A., enforcing a separation agreement’s schedule. The parents had determined what was in their children’s best interests; it was the Court’s job to help them “drive the bus,” using the parents’ authority to impose discipline on children, as well as the Court’s contempt powers, to enforce that schedule.

The parties were the parents of three boys, 10, 12 and 14, who resided primarily with their mother under a separation agreement that was less than two years old. Because of the distance between the parents’ homes, the father’s agreed-upon one midweek dinner with the boys was not specified. However, the agreement provided that if the father moved closer to the mother’s home, such would constitute a substantial change in circumstances permitting the father to seek a modification.

A year after the divorce, the father did move closer to the mother’s home. The father filed a motion seeking to expanded his alternate weekend time with the children to include Sunday overnights. He also sought to hold the mother in contempt for her alleged failure to follow the original schedule. For her part, the mother filed her own visitation modification petition seeking fewer visitation hours alleging, “the children’s wishes have changed;” the children did not want to have any dinner visits with their father if they had organized activities after school.

At a preliminary appearance, Justice Dollinger warned the mother that he was ordering the mother to restrict the children’s privileges and access to extracurricular activities if the children continued to fail to attend visitation. Justice Dollinger warned that he could hold a residential parent in contempt if the parents failed to strictly enforce the disciplinary restrictions set forth in a court order.Continue Reading Making Mom Make the Kids Visit Dad

Appreciation. Innovation. Frustration. All can be heard in New York County Supreme Court Justice Matthew Cooper’s May 18, 2020 decision in Chu v. Lin, dealing with parenting and marital residence issues in an ongoing divorce action. Justice Cooper begins with praise of the New York court system’s stepping up to adapt and press on during the COVID-19 pandemic. Indeed, it may “its finest hour.” At the same time, he bemoans the inadequacy of the new technology.

“While the true heroes of this medical emergency are undoubtedly health care workers, first responders, and other front-line workers who have put their health, and even their lives, on the line caring for others and supplying vital goods and services, an immense amount of credit must also be given to those who have managed to keep our courts open and running under the most difficult of circumstances imaginable. An independent, operational court system may not be an absolute necessity for sustaining life itself, but it is nevertheless an essential component of life as we know it in this country, as it is of any full-fledged constitutional democracy.”

In Chu, the pandemic exacerbated existing problems with parental access. Throughout the divorce action’s two-year history, a lasting resolution on custody and parental access had been stymied by a toxic mix of dysfunctional parenting, allegations of domestic violence, the existence of a Family Court Order of Protection, and an inability to abide by court orders.Continue Reading Parenting Issues under COVID, Part II

Four recent decisions address the issue of whether “stay at home” orders and the generalized pandemic threat are sufficient to deprive a child of regular and meaningful personal contact with both parents.

No, held Bronx County Family Court Judge Ariel D. Chesler on May 7, 2020 in Matter of S.V. v. A.J.

A generalized fear of the coronavirus crisis we all face is insufficient to severely limit and perhaps harm a child’s relationship with a parent.

There, the parties were the parents 4- and 2-year-old children who lived primarily with their mother. Prior to the father’s current application, numerous Family Court petitions had been filed. However, no temporary or final custody orders had been entered. A January 16, 2020 order granted the father alternate weekend visitation. Moreover, a Criminal Court final Order of Protection directed the father to stay away from the mother. As a result, the children were being exchanged at a police precinct.

The visitation order had been followed until the New York and New Jersey quarantine orders were issued. Then, the mother unilaterally decided not to produce the children for three alternate weekend visits beginning March 27th. In response, the parties arranged through their attorneys for daily video conference visits to take place between the father and the children. However, when further efforts by the parties to resolve the issue failed, the father petitioned the court to enforce the temporary order schedule, schedule makeup visits, and to direct daily video conferences.Continue Reading Visitation in These COVID-19 Times

In 2011, after the parties separated, the mother received sole custody of the parties’ only child, who resided with her. The father was awarded access every weekend. The father subsequently filed a petition seeking increased access. After a hearing, Kings County Family Court Judge Maria Arias denied the pro se father’s petition.

The father appealed, contending that the Family Court should have granted his request for a copy of a forensic report prepared by a court-appointed forensic evaluator, and that the court erred in admitting the forensic report into evidence. In its July 10, 2019 opinion in Raymond v. Raymond, the Second Department affirmed.Continue Reading Pro Se Father Denied Copy of Forensic Report Although Received in Evidence

Leaving parenting-time decisions to the future agreement of the parents is not a great idea, particularly with quarreling parents. So held the Appellate Division, Second Department, in its February, 2019 decision in Cabano v. Petrella.

In that case, the parents had entered into a December, 2013 so-ordered stipulation which, among other things, reaffirmed their joint legal custody, reaffirmed the mother’s residential custody, and set forth a detailed parental access schedule. That arrangement remained substantively in effect in a so-ordered modification stipulation entered in October, 2016.

In June, 2017, the father petitioned for a modification of the parental access schedule (apparently at least the third proceeding after parenting rights were initially established). After a hearing, Suffolk County Family Court Referee Kerri N. Lechtrecker granted the father additional parental access with the child.

Further, the Referee modified the number of hours of access to which each party was entitled on the mother’s birthday, the father’s birthday, and the child’s birthday. The order provided, in effect, that the parties each would have parental access with the child on his or her own birthday, and on the child’s birthday, if the birthday was during the other party’s parental access, for two hours on a school day and for four hours on a non-school day. The order required the parties to cooperate in reaching an agreement on the details.

The mother appealed. The Second Department modified that order.Continue Reading Don’t Leave Future Parenting-Time Decisions for Later Agreement