B. S. v A. S.

[*1] B. S. v A. S. 2021 NY Slip Op 21349 Decided on December 21, 2021 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 21, 2021
Supreme Court, Kings County

B. S., Plaintiff,

against

A. S., Defendant



Index No. XXXXX



Lee Anav Chung White Kim

Ruger & Richter LLP

By: Aimee L. Richter, Esq.

Michelle Spector, Esq.

Attorney for Plaintiff

99 Madison Avenue

8th Floor

New York, New York 10016

Brady Klein Weissman LLP

By: Margaret Brady, Esq.

Matthew G. Goodwin, Esq

Attorney for Defendant

501 Fifth Avenue, 19th Floor

New York, New York 10017

Brad Nacht, Esq.

Attorney for Children

26 Court Street No.1805

Brooklyn, New York 11201
Jeffrey S. Sunshine, J.

The parties share join custody of their daughters — 8 and 10 years old — and have diametrically opposed opinions about whether the children should be vaccinated against COVID-19. The mother-defendant filed an emergency application seeking, inter alia, the authority to vaccination the children.

During the growing worldwide Covid-19 pandemic, the divide between the parents has [*2]escalated to the point that judicial intervention is necessary.

The Court recognizes the seriousness of the issue and the tenor of the debate; however, the Court must exercise judicial restraint in honoring the prior stipulations entered into by the parties and by the rights of the parents to raise their children. Here, the Court will adhere to these sound legal principles and will not, under the unique facts and circumstances presented, become embroiled in the political-ideological arguments that divides these parties.

In making any determination the Court recognizes that these parties have entered into two (2) stipulations related to custody of their children: any determination by this Court must also recognize the binding nature of such stipulations unless modified by the Court (see Hallock v. State of New York, 64 NY2d 224 [1984]; see also Eichholz v Panzer-Eichholz, 188 AD3d 820 [2 Dept.,2020]).

PROCEDURAL HISTORY

The parties were married on May 29, 2005. The father commenced an action for divorce on December 9, 2016 and the parties subsequently entered into a stipulation of settlement dated March 20, 2018 which was incorporated but not merged into a judgment of divorce dated June 12, 2018. The parties share joint custody of the two (2) children of the marriage: daughters ages 10 and 8. The mother has a one (1) year old son with her current partner whom she lives with.

On April 9, 2020, a few weeks after a pandemic emergency was declared the mother commenced an action in Family Court, Kings County seeking modification of the parties' stipulation of Settlement and Judgment of Divorce to require the parties to comply with all state, city and federal social distancing protocols regarding COVID-19 [NYSCEF #23]. The parties resolved that application by entering into a consent stipulation dated April 10, 2020 [the "April 2020 agreement" which was so-ordered. That April 2020 agreement provided, as relevant here, as follows:

"The parties shall comply with all New York State and New York City issued guidelines related to COVID-19 and social distancing for the duration of the crisis [emphasis added]."

On December 7, 2021, the defendant-mother filed a post-judgment emergency application with Part 202.8 notice seeking the following relief:

(a) suspending the Plaintiff's in-person parenting time and restraining the Plaintiff from in-person access with the Children until either the Plaintiff agrees to allow the Children to be vaccinated against COVID-19 or:(b) The Plaintiff agrees to be PCR tested for COVID-19 weekly, undergoes COVID19 antigen testing 24 hours prior to any in-person parenting time, and tests negative as set forth in lab-issued results delivered directly to the Defendant via HIPPA authorization by the Plaintiff in favor of the Defendant; and(c) The Plaintiff agrees to abide by all Centers for Disease Control (CDC) and New York State recommended COVID-19 safety guidelines for unvaccinated individuals at all times for so long as he remains unvaccinated; and(d) The Plaintiff agrees that he will ensure that he and the Children abide by all CDC and New York State recommended COVID-19 safety guidelines for unvaccinated children at all times the Children are with him including that they remain masked when in the presence of unvaccinated and unmasked individuals; and(e) The Plaintiff not take the Children to visit or stay overnight in any location where [*3]those present are unvaccinated or unmasked.(f) restraining either party from traveling with the Children internationally including, but not limited to, Sint Maarten, until such time as the Children may be vaccinated against COVID-19; andBefore this Court on an emergency application filed the previously day (g) directing that the Plaintiff immediately pay his 90% share of Congregation Beth Elohim ("CBE Hebrew School") tuition pursuant to the parties' Settlement 2 Agreement totaling $3,915; and(h) finding and adjudging the Plaintiff to be in contempt of Court as a result of his willful disobedience of the Judgment of Divorce and punishing the Plaintiff by fine, the issuance of a warrant for the Plaintiff's arrest, imprisonment, or all of the foregoing under Judiciary Law § 756 and § 753 for his non-payment of his 90% share of the Children's Hebrew School Tuition and disobedience of the Order of the Kings County Family Court dated April 10, 2020; and(i) finding and adjudging the Plaintiff to be in default of the Parties' Settlement Agreement for his failure to comply with its stipulation that the parties meet twice with their Parent Coordinator when unable to reach consensus on a Major Decision; and(j) modifying the Plaintiff's and the Defendant's Settlement Agreement which was incorporated but not merged with the Judgment of Divorce entered in Kings County in 20l8 to permit the Defendant to have final decision-making authority with respect to Healthcare Decisions for the parties' Children; and(k) Pursuant to DRL § 238 and section 122-125 of the Settlement Agreement, that the Plaintiff shall pay the Defendant's counsel fees of not less than $25,000 pendente lite for the making of this motion and defending against any opposition or cross-motion and without prejudice to the Defendant's rights to seek additional fees in the modification portion of this proceeding;(l) for such other and further relief as this Court deems just and proper.

The parties, both represented by counsel in this proceeding, appeared on December 8, 2021. The Court granted the following temporary restraining order language by hand that the parties "shall follow the provisions of the stipulation dated April 10, 2020 in Kings Family Court which was "so ordered" specifically but not limited to the provision that 'the parties shall comply with all NYS and NYC guidelines related to COVID-19 and social distancing for the duration of the crisis."

The matter was adjourned to Tuesday, December 14, 2021 for the parties to fully brief the application and for the appointment of an attorney for the children. The Court directed the parties to submit the names of three (3) proposed attorneys for children on consent for the Court to consider in making the appointment. The Court appointed by written order dated December 8, 2021, one of the three (3) attorney names the parties proposed on consent: Brad Nacht, Esq.

Plaintiff filed opposition on December 10, 2021. Defendant filed reply on December 13, 2021. The attorney for the children did not file a written affirmation but appeared and represented that he had met (virtually) with his clients and that he was not substituting judgment. He shared his clients' position on the record during oral argument of the fully briefed application on December 14, 2021.

THE ARGUMENTS

The mother represents that she and her partner are vaccinated and have received boosters. The father does not dispute that he is unvaccinated.

The mother contends that since the COVID vaccine likely diminishes the chance that an individual will experience the worst risks — such as serious illness, hospitalization and death — associated with COVID-19 and its variants the father's refusal to consent to the children receiving the vaccine should be considered an intentional jeopardization of their health, safety and well-being. She further contends that the parties' prior attempt to navigate the pandemic safety issues related to the children have become untenable as, she alleges, the father has stopped complying with their April 2020 agreement.

The father, who is an attorney, argues that he is "highly educated and ha[s] spent hours researching the vaccine" and that his opposition to vaccinating the children is because "there is no medical information available about the long-term effects of the vaccine" and because the FDA has only approved the vaccine for emergency use under protection of immunity from future legal claims. In support, he cites as example, the medical issues that arose for first responders and workers at the September 11 World Trade site. The father contends that he does not want the children to receive the vaccine when, if they experience side effects, they cannot sue the pharmaceutical producers. The father notes in his affidavit that " simply because a drug or vaccine is approved by the FDA does not mean such drug or vaccine is safe or will not produce horrific side effects or even death." In the same affidavit, the father contends that "[t]his does not mean that as more facts unfold, I will not change my mind." The Court notes that text messages from the father to the mother appear to indicate the father's position that he will "never" agree to vaccinate the children against COVID [NYSCEF #24].

Neither party disputes the texts that they sent to each other are accurate but the father concedes that the texts he sent were send in anger and frustration.

April 2020 So-Ordered Stipulation: Contempt

The mother contends that "[t]his problem first arose in the spring of 2020 at the onset of the Pandemic when the Plaintiff made it clear that he was unwilling to adhere to social distancing recommendations, limit his contact with others, or cease traveling despite the recommendations by public health officials to do so to try to reduce transmission " It is undisputed that the mother sought judicial intervention in Family Court in April 2020 and the parties, who were both represented by counsel, resolved the application by entering into a consent stipulation in which they agreed to:

"Comply with all New York State and New York City issued guidelines related to COVID-19 and social distancing for the duration of the crisis [emphasis added]."

The mother contends that the father has stopped complying with the April 2020 stipulation that was so-ordered in the Kings County Family Court action. In essence, she alleges that the father does not follow NYS and NYC guidelines as to masking and social distancing and that he regularly travels to locations outside NYC where, she alleges, the father does not follow NYC or NYS guidelines. She further argues that the necessity for the children to receive the COVID vaccine is increased because the father refuses to be vaccinated himself and because he "refuses to abide by even rudimentary, common sense precautions against COVID-19 for himself or for the Children when they are in his care" [NYSELF #9] and because, she contends, the father takes the position that masking guidelines do not obligate him or the children to wear a mask and that the April 2020 agreement does not apply if he is not geographically in NYC. The [*4]father does not dispute that he is not vaccinated nor did he affirmatively address the allegation that he unilaterally chooses when or if he follows NYC and NYS guidelines as to masking and social distancing (CPLR 3018(a) provides that statements not denied are deemed admitted; see also U.S. Bank National Association v. Saff, 191 AD3d 733 [2 Dept.,2021][holding that answers of "neither admitted nor denied" in response to complaint should have been deemed admissions]).

In support, the mother annexed text messages from the father in which he states "My position is that unless something is mandatory such as wearing a mask on a plane I will comply. In all other situations I and the kids will not be wearing masks unless absolutely required. And FYI I will never consent to the kids getting the vaccine so looking forward to you taking me to court for that " [NYSCEF #24]. The mother contends that the father, in effect, "shames" the children if they try to wear masks when they are with him.

The mother asserts that pursuant to NYS guidelines all "unvaccinated individuals continue to be responsible for wearing masks, in accordance with the new CDC guidance" [NYSCEF #9 mother's affidavit; NYSCEF #25 NYS Landing Page on November 18, 2021 at 5:36 p.m.][FN1] She further asserts that "as of November 30, 2021, New York's Governor Hochul issued an advisory that everyone wear masks indoors given the potential threat posed by the Omicron variant" [NYSCEF #28]. It is undisputed that under the current NYC guidelines individuals, including children age 5 and older, who are eligible for vaccination but have not received at least one (1) dose of vaccine will not be allowed to participate in public indoor activities as of December 27, 2021.[FN2]

In another exhibit, the mother annexed March 2021 text messages from the father in which she inquired about if he was socializing inside with the children with non-household members who were unvaccinated.

FATHER: And don't be lecturing me about vaccines and seeing my parents either. Last I checked America was still a free country and I will do whatever I want. Have a great weekend. And FYI enjoy your last Alimony check.MOTHER: Hi. It is my business when your practices during a pandemic impact my household too. I am not looking to say what you can and cannot do but we do need to communicate with each other. As per New York guidelines your parents would need to quarantine for 10 days or test out if they took a test within 3 days of arriving back to NY and a second test on their 4th day of quarantine which would be Monday. This is not my rule by [sic] the states ruling which I am sure you will all comply with. I am not looking to argue as we have been getting along. Again I just want to make sure [the children] and our families stay safe and health during this pandemic.FATHER: You are a joke. You do not control me when I have the kids end of story. I will do what I want and feel free to do something about it. Tell them to not see friends inside? I didn't realize that was a law. This is bulls+++ and you need to stay out of my business. Go report my parents to the department of health [redacted]. F+++ing hysterical [redacted]. And please sue me. I'm begging you. So funny because that's why the kids kept asking when my parents were getting back because you were interrogating them. For your information they took a COVID test yesterday and it was negative. You're literally a sheep. You're gonna tell on me and my parents. Tell Cuomo the sexual harassing piece of s+++ governor [redacted]. You are interrogating the kids about when my parents are getting back from Mexico. Plus, the nonsense about seeing friends inside which is none of your business. And I'm never getting the vaccine. Sheep Sheep Sheep. No worries I'm telling the kids the real truth about BLM and Biden and Kamala. Yada Yada. They will not be brainwashed monkeys. [NYSCEF #51, text messages between parents].

Despite the parties' so-ordered agreement to comply with NYS and NYC guidelines, the mother asserts that the father is not in compliance because he concedes that he only masks the children when "absolutely required." She contends that the father's accusations that she is attempting to "control" him or interfere with his parenting time when she inquires about compliance with the April 2020 agreement make continued joint custody on this issue impractical because he will not comply with what he previously agreed to do which is disruptive to the children. The mother contends that the need for the children to receive the vaccination is increased because, she alleges, the father knowingly and regularly takes the children to indoor social gatherings with unvaccinated people who are not part of his household including visiting unvaccinated family members living outside NYC and other allegedly unvaccinated social friends inside.

The father did not dispute the mother's allegation that he does not mask or engage in proactive self-testing prior to engaging with friends and family and social life. In fact, the father concedes in his affidavit that he regularly engages in social gatherings with people "regardless of vaccination status." Further, in his December 10, 2021 affidavit, he concedes that he has socialized with friends and family since the beginning of the pandemic and contends that despite doing so he and the children have not "contacted [sic] COVID-19 or had any direct contact whatsoever with any person exposed to the virus."

It appears that the father takes the position that, in effect, he is under no obligation to follow NYC pandemic guidelines unless they are "mandates" and then only when he is physically in NYC or when required to do (ie, on an airplane, etc.). He did not directly address in his opposition or at oral argument the fact that the parties did not limit their April 2020 agreement to be binding on them only when they are geographically in NYC or NYS; however, text messages from the father to the mother detail the father's statements that he would prefer to move to Florida where there are no masking or vaccine requirements and he has suggested moving to Long Island where, he contends, he would not be required to follow NYC guidelines. The father offered no legal basis for the proposition that the parties' April 2020 only applies to them when geographically in New York City or New York State.

The Court hereby categorically rejects any presupposition that the April 2020 stipulation only requires the parties to follow all NYC and NYS guidelines when they are in NYC or NYS: the parties voluntarily consented to adopt those guidelines for themselves without any carveout [*5]for geographic location. The Court finds that the clear terms of the parties' April 2020 stipulation bind them to follow all NYC and NYS masking and social distancing guidelines at all times and in all locations. If the parties travel outside NYC or NYS they must continue to abide by these guidelines pursuant to their binding agreement to do so. It is clear that the purpose of the April 2020 agreement was to protect the children and, as such, they should be protected out of state as much as when they are in-state. To read the April 2020 Agreement to insert a geographic limitation would defeat the clear purpose of the agreement to follow the guidelines and would, in effect, invalidate the agreement.

The mother further alleges that in addition to not complying with the April 2020 agreement the father engages in conduct which raises the risk of exposure of the children by either will not allow the children to wear masks in these settings or engaging in behavior intended to deter the children from wearing masks when they should pursuant to the NYC and NYS guidelines. The father did not directly dispute these allegations in his affidavit in opposition or at oral argument. In his affidavit, the father argues, in effect, that masking, social distancing and testing are unnecessary to limit the children's risk of exposure to COVID related illness because he has "traveled with the girls on eight (8) trips" and the children have not tested positive for COVID.

In addition to the heightened health risk the mother contends are posed by the father's non-compliance with masking and social distancing guidelines given the unvaccinated condition of the father and the children, the mother also contends that the children will be detrimentally impacted if they are unvaccinated because they will be prohibited from participating in their ongoing extracurricular activities and established educational programs, including indoor sports like tennis.

Extracurricular Activities

The parties' Stipulation of Settlement dated March 20, 2018 provides:

Extra-Curricular Activities: The parties shall share payment of all costs incurred in connection with those extra-curricular activities, which the parties have agreed in writing (email sufficing, with such agreement not to be unreasonably withheld or delayed) to enroll the Children, with the Father paying ninety percent (90%) and the Mother paying ten percent (10%). For the avoidance of doubt, extra-curricular activities will include, but will not be limited to: camp, summer activities, sports, music, dance, gymnastics, enrichment, tutoring, and the like [emphasis added].

The mother argues that based on New York City's current guidelines, children age five (5) and older must as of December 27, 2021 show proof of at least one (1) dose of vaccination to participate in public indoor activities. It is undisputed that the children currently participate in several activities which they will not be eligible to continue if they are unvaccinated.

Hebrew School

It is undisputed that the children attend a private Hebrew school, which the parties consented to continue the children in their Stipulation of Settlement dated March 20, 2018. That Hebrew school has implemented a COVID vaccination requirement beginning January 4, 2022. The mother contends that the children have attended their Hebrew school for two (2) years and "have a network of friends there" who they will be cut-off from if they are not vaccinated.

The mother contends that the father is in contempt because he refused to pay his share (90%) of the Hebrew school tuition and she had to pay the full tuition to keep the children enrolled. The father took the position that it was unnecessary to pay for a Hebrew school that [*6]the children would not be eligible to attend because of he would not consent to them receiving the COVID vaccination. It is undisputed that the father agreed to reimburse the mother his 90% share of the Hebrew school tuition after the mother filed her application.

The father contends in his affidavit dated December 10, 2021 that he acknowledges that "the girls will be inconvenienced by not being able to attend certain activities, like tennis or Hebrew school for now" but that he considers this a "small sacrifice" because "[t]hey have plenty of other opportunities to socialize." He points out that during the pandemic he and the children while they are in his care have had "no issues during the entire pandemic getting together socially with any of their peers regardless of vaccination status." He argues that the mother has "not provided any direct evidence to the Court that the girls are endangered when with me because she cannot."

Pediatrician

It is undisputed that the children's pediatrician supports the children receiving the COVID-19 vaccination [NYSCEF #14]. The mother contends that the CDC, the American Academy of Pediatrics and the State of New York also recommend that all eligible children receive the vaccination. In an e-mail chain between the parties and the parenting coordinator spanning November 8-10, 2021 the father states that "[t]he pediatrician sent over a stock response and I don't really feel like reaching out to her. [emphasis added]" [NYSCEF #16].

Parenting Coordinator

The parties' Stipulation of Settlement dated March 20, 2018 provides for the use of a parenting coordinator as follows [NYSCEF #11, p. 31]:

64. In order to assist them in communicating with each other regarding the Children's health, education, well-being and welfare, and in making joint decisions for the Children, the parties agree to consult with a Parenting Coordinator. The parties agreed to retain a qualified mental health professional to act as a parenting coordinator (the "Parenting Coordinator") and have mutually selected Jayne Roberman, LMSW. The parties shall meet with the Parenting Coordinator for at least two sessions to assist in resolving a Major Decision unless the issue is resolved with fewer sessions. The Parenting Coordinator shall have the right to talk to any person he/she deems appropriate to further the provisions of this Article, including, but not limited to, the Child(ren)'s therapist, physician and school officials and the parties shall provide all appropriate authorizations requested by the Parenting Coordinator.65. If, after consulting with and receiving the advice of the Parenting Coordinator, the parties are still unable to agree upon a Major Decision, then either party is free to make an application to the Supreme Court, Kings County (or any other court of appropriate jurisdiction) for a determination of that issue and the Parenting Coordinator shall be permitted to testify and/or submit an affidavit regarding his/her position on the disputed issue. Until such application is decided, neither party shall undertake the disputed action or decision. However, if interim relief is requested and granted, the parties shall comply with such relief pending the final determination on the application.66. Nothing herein shall be construed as usurping the Court's authority and jurisdiction over custody-related issues, nor as precluding a party's right to seek judicial intervention for enforcement, modification or other application with respect to the custody provisions of this Agreement. It is only a means for resolution of conflict which is intended to reduce the likelihood and need to seek such judicial intervention.

The mother contends that the father did not comply with using the parenting coordinator pursuant to the terms of the parties' stipulation of settlement. The father contends in his affidavit in opposition that medical decisions are "not with the province of a Parenting Coordinator." The e-mail chain from the parenting coordinator clearly states that it was the parenting coordinator who stated in her e-mail to the parties dated November 10, 2021 at 9:44 a.m.:

I do not believe there is any reason to meet again. [Plaintiff-father] has made it clear that he doesn't feel a discussion with the pediatrician could result in a change of his position. Since you disagree on this matter, my recommendation is that you accept the recommendation of your pediatrician, who knows your children well. If you still disagree after that, I suggest that you consider taking this matter to court.

Testing Protocol If Children Remain Unvaccinated

The mother requests that, if the children are not allowed to be vaccinated, the Court restrain the father from visiting or staying overnight "in any location where those present are unvaccinated and unmasked" and order that the father "submit to weekly PCR testing and antigen testing immediately prior to his parenting time to try to begin to reduce the COVID-19 risk he poses to the Children [NYSCEF #9]."

In his December 10, 2021 affidavit, the father contends that the mother's request for a court order that until the children are vaccinated he be required to test negative for COVID prior to exercising his parenting time with the children "arbitrary and restrictive " and that, in effect, since the mother did not request that he test prior during the pandemic she should not be permitted to request that he test now.

He argues that " forcing me to indefinitely test as a condition to see my own Children is simply not reasonable" and that he would be "incredibly inconvenienced" to be required to test before seeing the children. He contends that being required to test negative for COVID before he could exercise his parenting time would be a "more stringent" safety protocol than, he contends, the Court would require if he was a "drug addict or alcoholic." He contends that the mother's application to establish testing protocols if he remains unvaccinated and insists that the children go unvaccinated is her attempt to take away his parenting time and "remove me from our daughter's daily lives."

The father does not address how the alleged "incredibly inconvenient" for him to take precautionary COVID testing should be weighed by the Court against what he characterized as "inconvenience" of the children being excluded from all public indoor activities if they are unvaccinated when considering the best interests of the children.

The father also contends that he should not be required to test against COVID because the mother tests the children for COVID after his parenting time with them and that this post-parenting time COVID testing is sufficient. The father, in effect, contends that any inconvenience to him of testing before his parenting time — as long as he remains unvaccination — is too "onerous" compared to the risk that he may be positive for COVID and transmit it to the children. In this context, any testing conducted by the mother after his parenting time with this children may serve to buffer her, her partner and these children's half-brother from further exposure but it does nothing to buffer the children from any contamination they may receive from the father during his parenting time before that testing.

The father argues that the present situation has become an endemic which may, he posits, require him to test indefinitely which he believes would interfere in his parenting time. He [*7]argues that "[n]othing has changed since March 2020 when the pandemic started to warrant my former wife's 'emergency' application to suspend my in-person parenting time with our daughters or suddenly request that I be tested as a condition to seeing them."

Modification of Joint Custody

The mother argues, in effect, that anyone who opposes COVID-19 vaccination and also refuses to take precautionary steps such as masking, social distancing and regular preemptive testing to ensure the health and safety of their children while they are in their care is, fundamentally, not capable of making major medical decision. She alleges that she is the parent who has made and attended most of the children's medical appointments.

The father concedes that the parties "have continued to both be involved in the girl's daily upbringing and jointly made decisions for the girls regarding school attendance, activities, medical care, summer camp and any scheduling changes." The father asserts that he communicates with the mother about every medical appointment but that he does not attend many of the appointments due to awareness of age/gender appropriateness of him attending appointments for the parties' 10 and 8 year old daughters. He disputes the mother's contention that he is not actively involved in the regular medical care and decisions for the children.

International Travel

The mother also requests that if she is not permitted to vaccinate the children that the Court restrain the parties from traveling internationally with the children. She contends that the father wanted to travel with the children to Sint Maarten or Costa Rica during the Christmas recess despite those destinations being classified as Level 3 (reconsider travel) and Level 4 (do not travel) respectively [NYSCEF #30, CDC travel advisory as of November 8, 2021]. The mother argues that while she was uncomfortable with the father's suggestion to travel she requested confirmation that he would follow masking guidelines for the children indoors based on the father's previous assertion that "when the kids are with me I am their parent and I MAKE the rules not you Last I checked America was still a free country and I will do whatever I want" [NYSEF #51]. She contends that she wants assurance that the father will follow NYC or NYS masking guidelines, pursuant to the April 2020 agreement, regardless of where he chooses to go.

The mother contends that "cases among children are on the rise" and there are growing concerns about the lingering health consequences of COVID illness in children who recover. She argues that the father raises "no valid health or religious objection" to vaccinating the children and that the father has "had no objection to the children receiving all other vaccines recommended by the CDC " She posits that the father's vehement rejection of the COVID vaccine is based " on the Plaintiff's political views and adoption of conspiracy theories " In support, she annexes a series of text messages from the father to her in which he states that he would prefer to relocate to Florida because there are no masking or vaccination requirements and where they do not teach "critical race theory". She argues that the Court should grant one parent in a joint custody the right to vaccinate children over the objection of the other parent where the refusing parent is refusing "just to make a political statement of some sort "

At oral argument, the father through counsel conceded that no travel reservations had been made for the December holidays citing the Court's temporary restraining order that the parties fully comply with their April 2020 agreement to follow all NYC and NYS masking and social distancing guidelines. The Court ordered that the ex parte restraining order binding the parties to follow their April 2020 so-ordered agreement as to following NYC and NYS pandemic [*8]guidelines remained in full force and effect.

Attorney for the Children

The attorney for the children has not substituted judgment for his clients and supports the mother's application that the children be vaccinated.

Counsel Fees

The Parties' Stipulation of Settlement dated March 20, 2018 provides for enforcement counsel fees as follows [NYSCEF #11, p. 56]:

123. For the purposes of this Agreement, it is understood and agreed that in the event a party shall institute an action, motion or proceeding against the other party to enforce any of the terms, covenants and conditions of this Agreement, and after the institution of such action, motion or proceeding and before judgment is or can be entered, such other party shall substantially comply with such term, covenant or condition of ,this Agreement, then, in that event, the suit, motion or proceeding instituted shall be deemed to have resulted in a judgment, decree or other determination substantially in favor of the person who instituted such action, motion, or proceeding, and the defaulting party shall pay to the person instituting the suit the costs and expenses of said instituting party, including the reasonable and necessary attorneys' fees incurred negotiating and recovering defaulted amount.

The mother contends that father must be required to pay her counsel fees because he is in default of two (2) provisions of the Settlement Agreement and the April 2020 so-ordered agreement.

She alleges that the father failed to meet with the parent coordinator "at least twice respecting Major Decisions." She requests $25,000 in counsel fees. In support, she annexed her retainer agreement and copies of the billing records for her legal fees in this matter.

The father opposes any award of counsel fees to the mother arguing that it is not an enforcement proceeding and because, he argues, there is no basis to modify the joint custody provisions of the Stipulation of Settlement.

Major Decisions

The parties Stipulation of Settlement defines "major decisions" as:

"The parties shall jointly make all major decisions affecting the Children's health, education and general well-being, including but not limited to choice or change of school, course of study, college, camp or comparable summer activity, extra-curricular activities, sports, enrichment programs including tutoring, extent of travel away from home, part-time or full-time employment, religious training, psychological or psychiatric treatment and counseling, doctors, dentists, orthodontists and surgeons (a "Major Decision") [NYSCEF #11, Stipulation of Settlement, March 20, 2018, pages 29-30].

The Stipulation of Settlement continues by providing as follows:

When a parent believes that a Major Decision needs to be made, he or she will notify the other parent in writing (e-mail sufficing), as soon as practicable and in no circumstances less than forty-eight (48) hours of the issue arising, of the details of the Major Decision and how he or she believes it should be resolved (the "Topic Notice"). The Topic Notice will be deemed to have been received by the parent to whom it was sent on the date that the Topic Notice was delivered (i.e., the e-mail sent) (the '"Notice Date"). Within seventy-two (72) hours of the Notice Date, the parent who received the Topic Notice will notify the parent who sent it in writing (e-mail sufficing) of how he/she believes the [*9]Major Decision should be resolved (the "Topic Response"). The Topic Response will be deemed to have been received by the parent to whom it was sent on the date the Topic Response was completely delivered (i.e., the e-mail sent) (the "Response Date"). If the parties are unable to agree on the Major Decision within 48 hours of the Response Date, they shall consult a designated third-party expert or engage the services of the Parenting Coordinator as set forth in Paragraphs 63 through 67 below. 63. If either parent fails to respond to a Topic Notice within seventy-two (72) hours, he or she will be deemed to have waived the right to the participate in a decision regarding the Major Decision, unless the delay is a result of a documented illness, travel, or other emergency, in which case the parent shall have an additional forty-eight (48) hours to respond to the Topic Notice.

THE LAW

It is well-established that joint custody is appropriate between "stable, amicable parents who behave in a mature and civilized fashion" (Zall v. Theiss, 144 AD3d 831, 833, 40 NYS3d 555 [2 Dept.,2016]). Joint custody is not appropriate where the parties are antagonistic towards each other or have a demonstrated inability to cooperate on matters concerning the children (see Moore v. Conzalez, 134 AD3d 718, 21 NYS3d 292 [2 Dept.,2015]). Furthermore, it is well-established that where the Court can change joint custody to solo custody where it finds that "acrimony between the parties and their demonstrated inability to cooperate on matters concerning the child made continued joint custody inappropriate" (Paruchuri v Akil, 156 AD3d 712, 713 [2 Dept.,2017]). It is also well-established the joint custody is not appropriate where "the parties are antagonistic towards each other, do not communicate at all, and have demonstrated an inability to cooperate on matters concerning the children" (Franklin v Franklin, 199 AD3d 758 [2 Dept.,2021]).

It is clear that the parties each hold strong opinions — opinions inapposite to one another — as to the efficacy of the COVID-19 vaccine. The parties each propose numerous complex frameworks and rationales for this Court to choose which option is in their children's best interest. The mother argues that health statistics, COVID variant surges in NYC, missed social interactions and the risk posed to the children due to the father's alleged non-compliance with COVID safety guidelines make it necessary to vaccinate the children. The father argues that he does not consent to the children receiving the vaccine because, he alleges, pharmaceutical producers received waivers against future litigation for unknown long-term effects.

Under the facts and circumstances presented, this Court need not at this time become embroiled in the specific disagreement between the parties on the issue of the COVID-19 vaccine. Nor, at this time, does the Court need to become embroiled in a fact-finding proceeding as to which set of experts the parties may offer are "right".[FN3] As such, the immediate question [*10]presented to this Court is not whether the parties should vaccinate or not vaccinate these children: the immediate question presented is whether it is appropriate for the Court to continue joint custody on the limited issue of COVID health care or whether the Court must carve out a sphere of influence on this limited issue.

Here, the immediate issue before the Court is whether the relationship between the parties has deteriorated to the point where the level of acrimony makes joint decision making on the limited issue of the COVID-19 vaccination unsustainable.

Under the unique facts and circumstances herein where the parties already mutually agreed in a so-ordered stipulation on adopting the NYC and NYS guidelines for their family. The issue presented is whether joint custody on this issue remains viable if one of the parties subsequently violated that agreement. The mother raised questions of fact as to the father's compliance. The father did not appear to dispute the allegations raise: instead, the father contends that any non-compliance was not "dangerous" because the children did not contract COVID-19. He contends, in effect, that the mother's standard of proof must be that he jeopardized the children's health by any non-compliance.

The Court does not adopt the mother's position that based on this disagreement it is necessary, at this time, to consider a change of custody as to all medical decision making: both parties acknowledge that they have been successful in navigating all prior medical decisions for the children and the Court should attempt to preserve as much of the parties' prior agreement as possible. Similarly, the Court does not adopt the father's position that any change in custody related to medical decision making would be inappropriate because, he contends, the parties "only" disagree on this "one issue": this issue has wide ranging implications and should not be minimized.

It is possible that the parties remain able to communicate maturely and civilly and to cooperate with one another on all other issues but this one: that general ability does not preclude this Court from carving out a sphere of influence as to the issue where they are unable to do so particularly if the animosity is placing the children "in the middle" of the disagreement which is an issue of concern raised by the attorney for the children (see generally Stone v Weinberg, 189 AD3d 1426 [2 Dept,2020]; see also Elizabeth S. v. Edgard N., 150 AD3d 585 [1 Dept.,2017][holding that joint custody with "spheres of influence" was appropriate where the parties had an acrimonious relationship]). The Court notes that "[s]ince weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved, the hearing court's findings are accorded deference, and will not be disturbed unless they lack a sound and substantial basis in the record" (id. at 657).

One of the central requirements of joint custody is the ability of parents to cooperate with one another. Here, initially, it appears that even though the parties did not agree on how to navigate the pandemic situation they were eventually successful in reaching an agreement on how to cooperate moving forward which they memorialized in the April 2020 so-ordered [*11]agreement in which they voluntarily and contractually bound themselves to a specific set of externally determined guidelines. This is an example of parties successfully engaging in joint custody; however, the mother now alleges that the father has refused to comply with what he previously agreed to do.

The mother alleges that the father unilaterally and selectively chooses which geographic locations where he complies with following the NYC and NYS guidelines: this allegation is not disputed by the father in his affidavit in opposition. The parties chose to bind themselves in a contract as to how they will conduct themselves during this pandemic.

These allegations require this Court to consider whether there has been a change in circumstances in which the father became unwilling or unable to cooperate in following the guidelines he voluntarily adopted in the April 2020 agreement. Furthermore, the Court must consider whether the father has become unwilling or unable to communicate with the mother on this issue in a mature and civilized manner or whether the level of acrimony has made it impossible for him to do so on this limited issue.

The mother attached text messages to her application in which she appears to ask the father about compliance with the April 2020 so-ordered agreement — Would the children be wearing masks indoors? Would the children be socially distancing when around unvaccinated non-household members? Etc. — and it appears that the father used these questions as an opportunity to call her demeaning names and to engage in ad hominum attacks on her social views. It appears where the parties agreed to a joint approach to adopting the NYC and NYS guidelines but then if one of them stopped following those guidelines it could place the children in the untenable position of being "in the middle" and not in their best interest.

If it is true that the father is now unable or unwilling to cooperate with his prior consent agreement to follow all NYC and NYS guidelines, is it not proof that joint custody on this issue is no longer appropriate? Whether or not the father stopped complying with the April 2020 agreement requires an evidentiary hearing as does the question, inter alia, of whether the father's use of disparaging name calling of the mother when asked about his compliance demonstrates that he has become unable to communicate with the mother on this issue in a "mature and civilized manner" and whether the level of acrimony makes it impossible for the father to continue to share joint custody on this issue. Under the most recent Appellate Division, Second Department caselaw the Court finds that the mother has alleged sufficient change of circumstances demonstrating a need for a change of custody to ensure the best interests of these children (see generally Assad v Assad, 2021 NY Slip Op 06978 [2 Dept., December 15, 2021]).

The evidentiary hearing will address the following limited issues: 1) whether the level of animosity on the issue of COVID has become such that either party has demonstrated an unwillingness or inability to communicate without animosity regarding the best interests of the children on the medical decision making as to COVID issues; and 2) whether the father has cooperated and complied with the April 2020 so-ordered agreement to follow NYC and NYS guidelines. Neither of these questions require the testimony of "COVID experts": the Court need only hear from the plaintiff and the defendant. Additionally, Appellate Division, Second Department caselaw, the Court believes that it will be necessary to conduct an in camera of the children (see Coleman v Lymus, 193 AD3d 930 [2 Dept.,2021][holding that it was error not to conduct an in camera with the children because "while the express wishes of children are not controlling, 'they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful'"). The parties may seek permission to call fact [*12]witnesses on these limited issues of compliance with the April 2020 agreement and communication between the parties on this issue. The Court need not hear, at this time, any testimony as to the merits of either parties' opinions as to the issue of COVID as that issue is not presently before the Court.

The Court notes that, on consent of all counsel, the Court was notified by e-mail dated December 16, 2021 that after oral argument of this application, one of the children (age 10) tested positive for COVID-19 and is in quarantine with the father. The father must make arrangements to assure that the child (and or children) are shielded from this proceeding and any virtual appearances that may take place during the time with the child or children are in his care. The same is true for the mother if the children are in her care during any virtual proceedings.

Given the seriousness of the issue presented, the Court will adjourn the currently calendared matters from January 3, 2022 and will conduct a virtual evidentiary hearing on the limited issues defined herein-above on January 3, 2022 at 10:00 a.m. The Court will schedule the in camera with these children upon notice to the attorney for the children. If the children have questions about this proceeding they should be directed to speak with their attorney.

All prior orders remain in full force and effect.

This shall constitute the decision and order of the Court.

ENTER:

__________________________

HON. JEFFREY S. SUNSHINE

J.S.C Footnotes

Footnote 1:The Court takes judicial notice that as of the date of this decision, the current New York State guidelines masks are to be worn in all indoor public spaces by individuals who are not vaccinated (see Indoor Masking Pursuant to 10 NYCRR 2.60 dated December 10, 2021). The Court notes that "indoor public place" is defined as "any indoor space that is not a private residence." Additionally, the Court notes that beginning December 27, 2021, under the Key to NYC, all private sector "workers in New York City who perform in-person work or interact with the public in the course of business must show proof they have received at lease one dose of a COVID-19 vaccine." Workplace is defined as "any location — including a vehicle — where you w0rk in the presence of at least one other person" (see www1.nyc.gov/site/doh/covid/covid-19-vaccine-workplace-requirement.page as of December 20, 2021).

Footnote 2:This is part of the commonly referred to "Key to New York" program. As of January 28, 2022, children age 5 and older must show proof of full vaccination to participate in public indoor activites.

Footnote 3:The Court is aware of the recent Appellate Division, Third Department case of Matter of Athena Y., 2021 NY Slip Op 06908 [December 9, 2021] but finds that it is distinguishable herein as much as that application was made by an attorney for the children in the context of an Article 10 proceeding. In the case presented herein, the Court's decision and rational behind that decision is consistent with the existing policy that parents have a fundamental right to raise their children in the manner they choose, subject to the state's ability to intervene to protect children in narrow circumstances (see Troxel v Granville, 530 US 57, 65-66 [2000]). Here, this Court is not directing any medical care at this time, rather, this Court must, under the facts and circumstances presented, ascertain whether joint custody is appropriate on the issue of COVID vaccination or if the relationship of the parties has become so acrimonious that the Court must award a sphere of influence as to that issue. This remains consistent with Troxel v. Granville.