Last week we blogged generally regarding the COVID-19 pandemic and custody matters with the intent of providing our readers general tips and strategies for dealing with this unprecedented time. This week, the New York Law Journal published two recent cases in which New York courts have issued rulings on parenting disputes during the COVID-19 pandemic. A third case from King’s County Family Court was also published on Lexis Advance dealing with a parenting dispute during this pandemic. In this blog post we have summarized the recent decisions, including quotes from the decisions themselves for the benefit of our readers.
Bronx Supreme Court
In R.M. v. B.S., the father, a first responder in New York City, moved for an order directing, in part, that the mother adhere to the terms of a 2019 stipulation between the parties granting him parenting time during April 17 – April 25, 2020 and directing the mother to adhere the parenting schedule for the rest of the year. The mother and the children are residents of Massachusetts. In order to exercise parenting time with their Father, the children would need to travel to New York, widely considered the epicenter of the COVID-19 pandemic. The mother argued that the father is a first responder with high exposure to COVID-19 and the father had not been quarantined for fourteen days. The mother further contended that she had been sheltering in place with the children in Massachusetts and one of the children has underlying respiratory issues and uses an inhaler. The mother was concerned about the father’s ability to ensure the safety of the children and also advised the father that she was indefinitely suspending parental access at that time and would allow the father to exercise his parental access when she deemed it appropriate. In the interim, the mother asserted that she had offered the father face time and telephone access to the children and the father had chosen not to participate in those modalities. The father contended that the mother ignored his communication that he works at the World Trade Center, which has been closed since March 13, 2020 and he would have virtually no interaction with the public and that he does not take public transportation to work. Further, the father argued that he had not seen his children in forty days.
In its’ decision and order, Justice Martin stated:
“The Court clearly recognizes the rights of the plaintiff as non-custodial parent 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. Based upon the record provided herein, the plaintiff shall be entitled to daily telephonic/skype access at 6 p.m. The defendant is hereby ordered to facilitate but not to interfere at all with said access.”
The Court having denied the father’s request for in person parental access during the children’s April 2020 recess indicated that it would entertain an application for “additional time” at a later date. Additionally, the Court reserved decision on the father’s application directing the mother to adhere to the parenting access schedule for the remainder of the year setting a conference in late May to address the outstanding issues.
Suffolk Supreme Court
In Waldorf v. Waldorf, the parties’ child attended boarding school in Maryland. The mother requested an order temporarily modifying an interim order of parenting time which the father opposed. The Court ruled that it was unable to issue a decision with respect to the issues on the papers submitted to the Court alone requiring a hearing. The Court also took judicial notice of the national pandemic and the fact that the schools are currently closed until further notice reasoning that the mother’s argument would likely be rendered moot as the child could recommence attendance at boarding school in Maryland in September 2020. Therefore, the Court held the mother’s application in abeyance. The Court also noted in the footnotes to its decision that the mother previously had moved for a Writ directing that the child be returned to her. However, the same Court was sitting as special term emergency judge on the return date of the mother’s Writ and ruled that the child could remain with the father during the national pandemic until further Order of the Court.
Kings Family Court
In Jennifer R. v. Lauren B., a same-sex couple divorced and entered into a settlement agreement which was incorporated into their judgment of divorce. Amongst other things, the judgment of divorce awarded the parties joint legal and physical custody of the parties’ nine year old child. During the pendency of the divorce proceeding, the mother moved for permission to relocate with the child to New Jersey, which was denied after a two-day hearing. Notwithstanding, the mother moved to New Jersey with her new fiancée and the ex-wife remained in Brooklyn, New York. Since the judgment of divorce was entered in 2018, the mother filed numerous applications to modify the judgment of divorce to obtain sole custody of the child, all of which were denied.
As is relevant to this post, on March 14, 2020, due to the Coronavirus Pandemic, the parties agreed, during the pendency of a post-judgment proceeding, to temporarily modify their parenting schedule to alternate their parenting time with the child every two weeks, with the mother to have parenting time from March 28, 2020 to April 5, 2020. However, the mother again filed an Order to Show cause with Immediate Relief on April 6, 2020 for the immediate grant of temporary sole custody and final decision making, arguing that the child should remain with her in New Jersey during the pandemic because New Jersey and the county she resides in pose significantly less risk of infection and transmission than that of New York. The mother further argued that the ex-wife lived in the Coronavirus “hotspot” of Brooklyn which is dangerous for the child.
Due to the mother’s actions, the ex-wife filed an Emergency Order to Show Cause on April 7, 2020 seeking a Writ of Habeas Corpus for the mother to immediately return the child to the ex-wife and for enforcement of the March 14, 2020 modified parenting schedule. The ex-wife argued that the mother is merely using the COVID-19 risks as “the latest subterfuge to misappropriate her custody.” The ex-wife’s Emergency Order to Show Cause was signed on April 7, 2020 granting the Writ and ordering the mother to return the child to the ex-wife for the duration of her parenting time.
In an Affirmation in Response, the attorney for the child supported the mother’s application for the child to temporarily reside in New Jersey based upon the child’s statement to her as to his preference and because New Jersey is a safer location during the pandemic.
Despite the attorney for the child’s input, the court denied the mother’s motion for the immediate transfer of sole custody to her without a hearing. The court found that the mother failed to prove a change in circumstances sufficient to warrant an immediate change in custody. The mother failed to cite to anything in specific which the ex-wife has done to place the child in risk of exposure to COVID-19. Additionally, the parties communicated and had an appropriate plan for the child to lower risk of exposure by reducing the number of exchanges. Further, the court stated:
Although the Mother makes much of the fact that New York is a “hotspot” of Coronavirus cases, she lives in New Jersey which is second in the Nation in terms of infections and wherein the New Jersey Governor, only two days before the Governor of New York did, also declare a State of Emergency on March 9, 2020.
In sum, the mother was required to return the child to the ex-wife in Brooklyn so the ex-wife could exercise her two-week parental access time, despite the mother’s concerns about Brooklyn being a hotspot for the Coronavirus pandemic.
The cases set forth above highlight both the emotionally devastating circumstances parents face as they lose the right to see their children and the conflicting outcomes that can occur depending on the fact-intensive nature of family law cases. Some overarching themes seem to persist in the review of all cases as follows:
- Due Process must be adhered to in all circumstances – this means, like the Court in Waldorf, a matter may be held in abeyance until a full hearing can be held.
- Custody Arrangements – especially those entered into solely due to COVID-19 – must be abided by.
- “Make-up,” “Substitute,” or “Additional” Parenting Time may be ordered now or in the future – Courts are scheduling quick-return dates to address “make-up” parental access and how the parental access will take place once the stay-at-home orders are lifted.
Courts in New York State have wide discretion in family law matters which requires each court to make its determination on a case-by-case basis. As these are truly unprecedented times for everyone, judges, lawyers and litigants alike, it is important, to the extent possible, that parents put their differences aside, communicate effectively, and make decisions that will serve the best interests of their children. If the litigant parents are unable to do so, what is clear is that the courts will continue to put the best interests of the children at the forefront of their decisions while recognizing the due process rights of each litigant.
Jaspan Schlesinger is committed to helping our clients make their way through this very trying time. Our offices are virtually open and we are monitoring the courthouse operations and are available via email, phone or video-conferencing to answer your questions and concerns. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. In the event that you need legal assistance regarding custody matters during COVID-19, please contact Marissa Pullano at firstname.lastname@example.org or (516) 393-8297 or Samantha Guido at email@example.com or (516) 393-8250.