Throughout the Covid-19 pandemic, we have blogged about the judicial decisions that have been rendered addressing parents withholding visitation from the other parent as a result of the pandemic. When the courts are presented with an application seeking to enforce visitation while simultaneously faced with the health concerns surrounding Covid-19, they have to take into consideration the facts and circumstances of the individual case. For example, the court may consider if there are health concerns of the children or other individuals in the home. As a result, you are bound to see the courts issue varying decisions. This blog post is to present you with yet another decision regarding parents attempting to navigate visitation schedules while also navigating the Covid-19 pandemic.
In a decision issued out of Nassau County Family Court, J.R. v. S.R., the court was faced with an application of the father seeking: (1) to hold the mother in contempt for her alleged failure to abide by the visitation schedule; (2) seeking to enforce the parties visitation schedule; (3) seeking “make-up” parenting time for the mother’s alleged failure to abide by the visitation schedule; and (4) an award of counsel fees. The mother cross-moved seeking: (1) to dismiss the father’s application; (2) imposing sanctions pursuant to 22 NYCRR Section 130-1.1 against the father for making a frivolous application; and (3) an award of counsel fees in the sum of $3,500.
The father claimed that at the beginning of the Covid-19 pandemic the parties agreed that the children would remain with the mother. However, the father contended that he notified the mother on May 7, 2020, that he planned to resume the regular visitation schedule on May 8, 2020. The father further claimed that he was advised by the mother that if he planned on taking the parties’ son (as that is the only child he was pursuing visitation with) he would have to keep him indefinitely to ensure the health of her father, who resided with the mother and the children. The father alleged that despite his attempts to resume visitation, the mother only permitted him to visit with the children for a few hours on May 26, 2020.
The mother opposed the father’s application, claiming that the parties made a joint decision that the children would remain with her during the Covid-19 pandemic for many reasons, which included the fact that her elderly father lived with her and that the father and his partner worked in the medical field. The mother further argued that the father had access to the children throughout the pandemic, including overnight visits. The mother maintained that the parties agreed to “pause” their visitation schedule due to the pandemic but that the father had resumed the regular visitation schedule before the filing of his application. Additionally, the mother contended that the father had never requested “make-up” time for the visits he had missed during the pandemic and failed to respond to her attorney’s offers for any “make-up” time.
The mother went on to argue that the father’s request for counsel fees must be denied as he failed to serve her with a formal notice of default as required by article 13 of the parties’ stipulation of settlement. Additionally, the mother claimed that the father failed to attach a copy of his retainer agreement or invoices which is required when seeking an application for counsel fees. Instead, the mother alleged that she is the one entitled to counsel fees as a result of the father’s frivolous conduct.
The court denied the father’s request to hold the mother in contempt of court for violating the parties’ visitation schedule. The court found that any missed parenting time on the part of the father was a direct result of the Covid-19 pandemic and the attempts of the parents to weigh the safety and health of their respective household during such unprecedented times. The court noted that as the uncertainty of Covid-19 continued, strict adherence to the visitation schedule was close to impossible. It was evident that there was no malicious intent on the part of the mother by withholding the children. Instead, the parties made the mutual decision to adjust the visitation schedule based on the pandemic.
While the court did not find the mother in contempt, it did grant the father’s request to enforce the parties’ visitation schedule. However, the court noted that the visitation schedule should be adhered to as strictly as possible while also taking into consideration the infection rates for Covid-19. Specifically, the parties are to provide notice of any possible modifications that may need to be made to ensure the health and safety of the children due to the pandemic. Additionally, the court granted the father’s request for “make-up” parenting time, which was to be agreed upon between the parties.
With respect to counsel fees, the court denied the father’s request. The court found that the father failed to comply with the terms and conditions set forth in the parties’ stipulation of settlement which required him to send the mother a notice of default, a condition precedent to filing his application. Additionally, the father failed to comply with the statutory requirements in seeking an award of counsel fees.
The court denied the mother’s request to dismiss the father’s application as well as her request for an award of sanctions pursuant to 22 NYCRR Section 130-1.1. However, the court granted the mother’s request for counsel fees in the sum of $2,500, finding that the father’s failure to send a notice of default prevented the mother from being given the opportunity to cure any alleged default before being forced to incur litigation costs.
So, what’s the moral of the story? Covid-19 has added another layer to co-parenting relationships that may already be difficult and the courts are issuing decisions based on the facts and circumstances presented in each individual case. There are no hard and fast rules when it comes to navigating visitation issues during a pandemic especially considering the fact-intensive nature of family law cases. The one persistent theme in the decisions addressing visitation during the pandemic is that the courts will continue to put the best interest of the children at the forefront of any determination.
The material in this blog is only meant 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, please contact Hanna E. Kirkpatrick at firstname.lastname@example.org or (516) 393-8259.