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.
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.
Notably for Judge Chesler, the father reported his understanding of the COVID-19 crisis, and that he would never place the children in harm. The father advised that he lived in New Jersey in a 2-story home with a backyard, that enabled them to spread out and play in a private yard. The father had been practicing social distancing measures and had not tested positive for COVID-19. The father had his own automobile and promised he would transport the children in it and not via public transportation; that he was available to pick up the children; that he would drive the children directly to his home and would not take them out of his home during the visits; and that the only other person allowed in his home was his mother, who resided in the home.
The mother claimed that visits were to be suspended once New York and New Jersey issued the “stay at home” orders. She opposed any in-person visits between the father and children during the pandemic, noting the risk of spreading the virus. The mother argued that it was “irresponsible” to make parents comply with court-ordered in-person visitation because it might impact their safety.
The attorney for the children did not oppose in-person visits as long as social distancing and other safety measures were followed, and supported daily video conferences between the father and children. The attorney for the children also suggested that the missed visits could be made up by expanding the father’s weekends to begin on Thursday evening and end on Monday evening.
On motion papers and with judicial notice of relevant orders and an investigation report Judge Chesler without a hearing granted the father’s application. He wrote:
“We are now in a time of disruption, fear, uncertainty, and uncharted territory, and the Court appreciates how this stressful time may impact families, particularly those in conflict. However, to the greatest extent possible, we must ensure stability and comfort for children. While public health crises such as the one we face may impact children’s lives, and all of our lives, in many ways and for an unknown period of time, there is a presumption that continued connection and time with both parents is critical and in the best interest of children.”
Judge Chesler held that the mother failed to articulate, submit evidence, or even allege any particularized health concern such that the Court would consider suspension of in-person visits. 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.
Judge Chesler went on: this pandemic is not to be used to limit access by a parent or to flout valid orders of the court. Rather:
valid orders of the court must be followed during this crisis unless a parent can articulate a specific health or safety risk, and can demonstrate to the Court that suspension of visits is warranted, which may be a heavy burden. In any event, in such a case a parent must then affirmatively move the court for emergency relief in order suspend any visitation order and may not resort to self help by failing to produce children for visits.
It was Judge Chesler’s opinion that while our movements and lives may be severely constrained during this time period, it is just as important for the children to see their father as it is for them to see their mother. The children have two homes and should spend time in both places.
In times of crisis children need regular contact with both parents more than ever to provide love, comfort, stability and guidance, something that video and virtual connections cannot fully accomplish. Our lives may be “on hold” in many respects, but vital family relationships cannot be placed on hold indefinitely without serious risk of harm.
Judge Chesler enforced the January temporary order, granted makeup visiting time, with exchanges to continue at the precinct. Daily video conferences were to continue.
Similarly, in Jennifer R. v. Lauren B., Kings County Family Court Judge Javier E. Vargas, held that a mother failed to prove COVID-19 provided a change in circumstances sufficient to warrant an immediate change in custody. The mother failed to specify anything that her ex-wife had done to place the 9-year old child of this divorced same-sax couple at risk of exposure to COVID-19. Additionally, the parties had entered a modified parenting schedule at the beginning of the coronavirus pandemic to lower the risk of exposure by reducing the number of exchanges. The parents agreed to alternate their parenting time with the child to be every two weeks with each parent. The mother sought a change.
The attorney for the child supported the mother’s application for the child to temporarily reside with the mother in New Jersey based on the child’s statement to her of his preference and to provide a safer location during the pendency of the coronavirus pandemic. The child reported to her that he was doing well, was participating in remote learning and was speaking with the ex-wife regularly over the phone. According to the AFC, the child “made clear that this preference was not a reflection on his relationship with either parent, but that the current arrangement of splitting the weeks between the households leaves him feeling unsettled.”
These arguments notwithstanding, Judge Vargas disagreed with the mother and the attorney for the child.
The Court first noted that the mother had failed to use a mediator as a condition precedent to this judicial application as required by their parties’ divorce settlement agreement and judgment.
Judge Vargas also ruled that the mother failed to demonstrate a change in circumstances warranting an immediate change in the custody arrangement. The mother’s allegations were unsubstantiated and conclusory. Although the mother made much of the fact that New York is a “hotspot” of coronavirus cases, she lived in New Jersey which was second in the nation in terms of infections. In any event, the Court trusted the parties’ judgment with respect to the child, and required that they comply with the government directives in terms of enforcing social distancing, using cloth face coverings and gloves for the child, avoiding contact with vulnerable populations, and using precautionary sanitizer practices.
The child’s wishes to remain in New Jersey were not controlling; they were only one of the many factors to be examined in a custody determination. The child may be having a difficult time understanding the current situation and the “need[s] all of the adults in their lives to behave in a cooperative, responsible and mature manner,” citing Tolchinsky, A. & Wertheim E., Family and Dispute Resolution in Pandemic Times, NYLJ, April 21, 2020, at 3, col 1). The parents’ behavior during the pandemic and while the case is pending in court will be relevant to the Referee in her ultimate custody determination (see Sunshine, J., COVID-19 and Future Custody Determinations, NYLJ March 27, 2020, at 3, col 1).
On the other hand, in R.M. v. B.S., NYLJ 4/27/2020, Bronx County Supreme Court Justice La Tia Martin held on April 27th that a father’s in-person time with his children would be temporarily suspended, but daily video calls would be granted. The father sought to visit with the children during their scheduled spring school break as provided in the parties’ agreements. The father was a first responder, but who claimed limited interaction with the public. He lived in New York and who had not been quarantined for 14 days. The mother argued that if the father had access, he would “not ensure the safety of the children.” The mother resided with the children in Massachusetts [third in cases behind New York and New Jersey] and had been sheltering with them at home in house with a private backyard where the children have space to enjoy fresh air safely. One of the children had underlying respiratory issues and used an inhaler. The mother claimed she was responsible for home-schooling.
Following a Skype conference with the pro se father and the mother and her counsel, Justice Martin held:
The Court clearly recognizes the rights of the [father] to exercise his previously agreed upon parental access. Unfortunately, this current public health crisis has upended the lives of us all. However, in light of the unprecedented Covid-19 virus pandemic throughout the nation the Court shall temporarily set forth a new parental access schedule for the plaintiff. It is in the best interest of the parties’ children for their safety at this time to implement the new, although temporary, access schedule.
Justice Martin ruled that the father would have daily telephonic/Skype access at 6.p.m., but the father access during the April 2020 recess; noting that the Court would entertain an application for additional time at a later date.
Finally, in Waldorf v. Waldorf, NYLJ 4/27/2020, Suffolk County Supreme Court Justice Cheryl Joseph held on April 22, 2020 that she was unable to determine without a hearing the ex-wife’s application to temporarily modify the interim parenting time order. The ex-wife’s claim the parties’ child should be with her during school weeks became moot when schools were closed until further notice.