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.
In January 2020 [before the Covid pandemic], the father petitioned to modify the custody stipulation so as to award him sole decision-making authority with regard to the children’s medical care. The father alleged that the mother had violated the custody stipulation by obtaining medical care for the children from pediatricians other than those named in the custody stipulation. Moreover, he alleged that the mother was refusing to give consent for the children to receive vaccinations, and that the youngest child had been prohibited from attending school until the school district received proof that the child was up to date on his vaccinations.
In a June 8, 2020 order, Suffolk County Family Court Judge James F. Quinn granted the father’s petition without a hearing. The mother appealed.
Quoting precedent, the Second Department held that:
. . . [M]odification of a court-approved custody stipulation “is permissible only upon a showing that there has been a sufficient change in circumstances such that modification is necessary to ensure the best interests and welfare of the child.”
The appellate court held that Judge Quinn’s determination was supported by a sound and substantial basis in the record. The uncontroverted evidence was that the mother had refused to consent to the children receiving vaccinations recommended by the pediatricians named in the custody stipulation, leading to the youngest child being prohibited from attending school. This constituted “a sufficient change in circumstances such that modification [was] necessary to ensure the best interests and welfare of the child.” Furthermore, the Second Department held that under the totality of the circumstances, awarding the father sole decision-making authority with regard to the children’s medical care was in the children’s best interests.
Note: The Court did not discuss the impact or weight given to the fact that the mother violated the parties’ stipulation by having the children treated by doctors other than those named in the stipulation, or that the stipulation improperly delegated the decision to third parties, i.e., the named doctors. Matter of Jennifer J.H. v. Artrieo J.R., 148 A.D.3d 809, 48 N.Y.S.3d 748 (2nd Dept. 2017); Matter of Edwards v. Rothschild, 60 A.D.3d 675, 875 N.Y.S.2d 155 (2nd Dept. 2009); Matter of Held v. Gomez, 35 A.D.3d 608, 824 N.Y.S.2d 741 (2nd Dept. 2006).
Salvatore C. Adamo, of Manhattan, represented the mother. Jordan M. Freundlich, of Lake Success, served as Attorney for the Children.