Proceeding for Custody/Visitation Under Article 6 of the Family Court Act A.L. v. V.T.L., 2022-22017

CourtNew York Family Court
Writing for the CourtKEITH CORNELL, J.
PartiesIn the Matter of a Proceeding for Custody/Visitation Under Article 6 of the Family Court Act A.L., Petitioner, v. V.T.L., Respondent.
Decision Date24 January 2022
Docket Number2022-22017,V-02893-21/21A

In the Matter of a Proceeding for Custody/Visitation Under Article 6 of the Family Court Act A.L., Petitioner,
v.

V.T.L., Respondent.

No. 2022-22017

Docket No. V-02893-21/21A

Family Court, Rockland County

January 24, 2022


Pro se petitioner Father:

Adam Levine

Mother represented by:

David Warren, Esq.

Child represented by:

Christopher Widholm, Esq.

Legal Aid Society of Rockland Co.

Attorney for the Child

KEITH CORNELL, J.

Before the Court is the petition filed by A.L. (the "Father") seeking to prevent or postpone the administration of a COVID vaccine to his son, M.T.L. (DOB xx/xx/2010). The Father asks the Court to modify the current custody order, which gives final decision-making authority to Respondent V.T.L. (the "Mother"), and to give the authority to him on this one issue. The Mother opposes the application.

Background

The parties married on January 26, 2008. During the marriage, the parties had two children, A.T.L. (DOB xx/xx/2008) and M.T.L. (DOB xx/xx/2010). The parties separated and a final Judgment of Divorce was entered by the Supreme Court on May 28, 2015. The Stipulation of Settlement signed by the parties on March 27, 2015, was incorporated but not merged into the Judgment of Divorce (the "Stipulation"). The Stipulation provides that the parties have joint legal custody of the children. It further states that

The parties shall jointly consult and agree with each other with respect to the children's... health.... It is understood and agreed that the parents shall use their best efforts and good faith at arrive at decisions in the best interest of the children. In the event the parties are unable to agree upon a decision, the Mother shall have final decision making authority, subject to the Father's right to seek court intervention

Id., Article VIII "Custody and Visitation" ¶ 2.

On December 30, 2021, the Father filed a petition with this court by Order to Show Cause seeking to prevent the Mother from taking their younger child, M.T.L., to have a COVID vaccine administered that day. [1] The Court signed the OTSC, granted the temporary restraint, and made the matter returnable on January 3, 2022. The parties appeared without counsel. Each read a statement to the Court. The Court appointed an attorney for the child for M.T.L. and informed the parties that a hearing would be held on January 19, 2022. The Court directed the parties to focus on the issue of medical decision-making generally, rather than attempting to convince the Court about the safety and efficacy, or lack thereof, of the COVID vaccine.

On January 17, 2022, two days before the scheduled hearing, counsel filed a notice of appearance on behalf of the Mother. Counsel also submitted a memorandum of law that argued that a hearing was not necessary, as there had not been a substantial change of circumstances. Counsel argued instead that the Father's petition should be dismissed. The memorandum also argued, that if the matter was considered on the merits, the Mother's final decision-making authority should remain intact so that she could have M.T.L. vaccinated, as recommended by various governmental agencies and the child's pediatrician.

On January 19, 2022, both parties appeared. The Father remained pro se. Counsel for the Mother and the Attorney for the Child appeared. Over the Mother's attorney's objection, the Father read a prepared statement to the Court. The Father expressed his love for his son. He detailed his concerns about the COVID vaccine. He advocated for waiting to vaccinate M.T.L. until more information is available about the long-term effects of the vaccine. He suggested that the parties delay vaccination until M.T.L. is 18 and can make his own decision. The Father asked the Court to take judicial notice of the data maintained by VAERS, the Vaccine Adverse Event Reporting System, which is co-managed by the CDC and the FDA. The Father stated that 99.997% of young men of M.T.L.'s age who contract COVID recover from the illness. The Father reported on a conversation that he had with an unnamed 80 year old friend, who strongly advocated against vaccination. The Father pointed out that M.T.L. already contracted COVID and stated that he believed that M.T.L.'s post-illness immunity was sufficient or superior to the protection provided by the vaccine. He questioned the effect of vaccination on any person who has already contracted COVID. He urged the Court to give him decision-making authority so that the Mother did not rush to make an impulsive decision to vaccinate the child.

The Mother's attorney objected to the hearsay statements in the Father's presentation. The Mother argued that the hearing was unnecessary as a matter of law, since the Mother has final decision making and the Father failed to offer any testimony or evidence that would tend to prove that the current legal custody arrangement should be altered for the best interest of the child. The Mother's attorney requested the opportunity to cross-examine the Father on his statement, but the Court denied the request. The Court reserved decision.

Discussion

Here, two distinct issues have been raised. First, when a custody agreement reached on consent grants one parent final decision-making authority, but specifically reserves the right of the other parent to seek court intervention when they object to a decision, what does the objecting parent have to allege to be entitled to a fact hearing? Second, in these same circumstances, what does the objecting parent have to prove, and by what standard, to establish that final decision making should transfer to the objecting parent or that the Court should order that a decision contrary to the final decision-making parent's choice should prevail?

It is an oft repeated maxim that the party...

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