C.B. v. D.B.
| Decision Date | 07 October 2021 |
| Docket Number | 308204/2019 |
| Citation | 155 N.Y.S.3d 727,73 Misc.3d 702 |
| Parties | C.B., Plaintiff, v. D.B., Defendant. |
| Court | New York Supreme Court |
Attorney for Plaintiff, Berkman Bottger Newman & Schein, LLP, By Evan Schein, Esq. & Samantha Cooper, Esq., 521 Fifth Avenue, 31st Floor, New York, New York 10175, Phone: 866-521-6653
Attorney for Defendant, Wisselman, Harounian & Associates, P.C., By Lloyd Rosen, Esq., 346 Westbury Avenue, Suite 200, Carle Place, NY 11514, Tel. 516-773-8300
Guardian Ad Litem, Karen B. Rosenthal, Esq., Bender & Rosenthal, LLP, 451 Park Avenue South, 8th Floor, New York, NY 10016, Phone: 646-741-3805
Throughout most of modern medical history, the advent of a vaccine was almost universally embraced as a means of protecting ourselves and our children from deadly or debilitating disease. In my lifetime, I need only think of how polio was eradicated in this country as a result of the vaccine first developed by Jonas Salk, with other diseases, such as measles
, rubella, and diphtheria, having been similarly eliminated.
Then came COVID-19. Fortunately, most people, heeding expert medical opinion, have availed themselves of vaccines that promise not only to protect them and others from the ravages of COVID-19, but ultimately to completely vanquish the virus. Unfortunately, and to my mind, incomprehensibly, a sizeable minority, seizing upon misinformation, conspiracy theories, and muddled notions of "individual liberty," have refused all entreaties to be vaccinated.
In this ongoing divorce case involving a three-year-old child, the issue of COVID-19 vaccination
is now before me. The issue is not one of whether the child should be vaccinated; she is still too young to receive any of the vaccines. Nor is it one of whether I can require an adult to be vaccinated; to do so would stretch the authority of a matrimonial court to unprecedented lengths. Instead, the issue is whether the plaintiff-mother, who has de facto custody of the child and is fully responsible for her care and upbringing, can condition the defendant-father's access with the child, which is limited and supervised, on defendant and his supervisor being vaccinated, or at the very least, submitting to a testing regimen prior to each of the access periods.
The parties were married in 2015, and their child, a daughter, was born in 2018. After intense marital discord, plaintiff commenced this action for divorce in September of 2019. Since that time, the high-conflict nature of this action has only increased. Plaintiff, recounting defendant's history of substance abuse and untreated mental health issues, as well as the significant periods where he had not seen the child at all, sought to have defendant's access subject to supervision. Sharing plaintiff's concerns for the child's safety and well-being while in defendant's care, I directed, by an order dated May 13, 2021, that his parental access be supervised by Comprehensive Family Services, an independent parenting services agency. I later modified the order to permit supervision by defendant's parents.
Although there has yet to be a final determination as to custody, plaintiff is the residential parent, with the child living exclusively with her in Manhattan, where the parties lived prior to their separation in 2019 and where the child attends preschool. Defendant lives with his parents on Long Island. His parenting time with his daughter is limited to daytime access every other weekend and continues to be supervised by his parents, mainly his mother. The child is represented by a Guardian ad Litem (the "GAL") appointed by the court.
On September 2, 2021, plaintiff, joined by the GAL, made an emergency oral application for defendant and any supervisor utilized for defendant's access to be vaccinated against COVID-19. On that date, I issued a Temporary Restraining Order (TRO) suspending defendant's in-person access on an interim basis until he was vaccinated. Plaintiff, as directed, subsequently brought a formal motion by Order to Show Cause seeking the same relief, with defendant having submitted his affidavit and his attorney's affirmation in opposition, and the GAL having submitted an affirmation in support.
I heard oral argument on the motion virtually on September 15, 2021. At argument, both plaintiff and the GAL stipulated on the record that, in lieu of defendant showing proof of his being vaccinated, they would accept his agreeing to a regular protocol of COVID-19 testing as a condition for the resumption of in-person parenting time. Defendant, for reasons that seemed more connected to his animosity to plaintiff than anything else, refused this reasonable proposal.
Following the argument, I continued the TRO but amended it to provide that defendant's in-person access with the child would remain suspended until he and any approved supervisor either received a first dose of a COVID-19 vaccine or submitted to a COVID-19 testing regimen that included a PCR test once per week and a COVID-19 antigen test (AKA "rapid test") within 24 hours of any in-person visit. As with the original TRO, defendant was to continue to have liberal virtual and telephone access.
It is well-established that there is a "rebuttable presumption that visitation by a noncustodial parent is in the child's best interest and should be denied only in exceptional circumstances" where "compelling reasons and substantial evidence show that visitation would be detrimental to the child" ( Matter of Josephine F. v. Rodney W. , 168 A.D.3d 486 at 486, 92 N.Y.S.3d 13 [1st Dept. 2019] ) or is otherwise "inimical to the welfare of the child" ( Matter of Granger v. Misercola , 21 N.Y.3d 86, 90, 967 N.Y.S.2d 872, 990 N.E.2d 110 [2013] ). Further, "[t]he paramount concern when making a parental access determination is the best interests of the child, under the totality of the circumstances" ( Marino v. Marino , 183 A.D.3d 813, 816, 123 N.Y.S.3d 638 [2d Dept. 2020], quoting Matter of Velasquez v. Kattau , 167 A.D.3d 912, 913, 90 N.Y.S.3d 125 [2d Dept. 2018] ).
Here, in-person parental access by defendant is not in the child's best interests, and there are exceptional circumstances that support its suspension. The danger of voluntarily remaining unvaccinated during access with a child while the COVID-19 virus remains a threat to children's health and safety cannot be understated. Although some children infected with the virus experience mild symptoms, others are subject to serious illness and long-term health effects. Children under the age of 12 have not yet been approved to receive COVID-19 vaccines, so they are dependent upon the vaccination
and health status of the adults around them. The danger extends beyond this child and includes a risk of serious infection to any person with whom the child comes into contact, including plaintiff, the child's classmates, and their families.
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