On May 7, 2020, a Bronx County Family Court Judge held that the Coronavirus pandemic in and of itself was no excuse for a parent to engage in self-help and prohibit a parent from exercising court ordered parenting time.
In Matter of S.V. v. A.J., the father brought a motion before the court seeking to enforce a January 16, 2020 order directing that he have alternate weekend visitation with the parties’ children. The mother failed to produce the children from weekend visitation on the weekends of March 27, April 10, and April 24. Instead, the parties arranged through their respective counsel for daily video conference visits between the father and the children.
The father, who lived in a two-story home in New Jersey, argued that he has been practicing social distancing and has not tested positive for COVID-19. The mother argued that the visits were suspended once New York and New Jersey issued “stay at home” orders in March, 2020. The mother opposed the father’s request for in-person visits due to the risk of spreading the Coronavirus. She argued that it would be “irresponsible” to make parents comply with court-ordered in-person visitation because it may impact the children’s safety. Further, the mother argued that the exchanges between the parties must occur at a precinct given the history between the parties, which further endangers the parties’ and the children’s safety. The attorney for the children did not oppose the in-person visits so long as social distancing and other safety measures were being followed.
The court granted the father’s motion and held that in-person visitation was to commence immediately. The court stated,
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.
The court went further to state,
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.
Finally, and perhaps most impactful, the court stated,
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 [sic] suspend any visitation order and may not resort to self-help by failing to produce children for visits.”
As shown above, the court made clear – a parent cannot simply decide not to produce a child for an exchange of parenting time in violation of a court order and blame the Coronavirus as an excuse. While we are living in a time of uncertainty, as the Court in S.V. stated, a parent must show that a suspension of visits is warranted and outweighs the benefits of continued connection and time with both parents. This does not, however, mean that parents cannot enter into an agreement limiting the number of exchanges and put into place certain precautions to limit exposure to the disease. While we continue to face unprecedented times, it remains vital that parents keep effective communication channels open in order to make joint decisions that will serve the best interest of their children.
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