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

• Decision Date: 24 January 2022
• Docket Number: V-02893-21/21A
• Citation: 2022 NY Slip Op 22017
• Parties: 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.
• Court: New York Family Court

2022 NY Slip Op 22017

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.

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 seeking to modify a custody or visitation order has the burden of showing that a sufficient change in circumstances has occurred since the entry of the last order to warrant a modification. See Greenberg v. Greenberg, 144 A.D.3d 625, 629 (2d Dept. 2016); Dezil v. Garlick, 114 A.D.3d 773 (2d Dept. 2014); Pignataro v. Davis, 8 A.D.3d 487 (2d Dept. 2004). Further, a party seeking to modify a custody agreement is not automatically entitled to a hearing absent some evidentiary showing of changed circumstances. See Hillord v. Davis, 123 A.D.3d 1126 (2d Dept. 2014) (reversing and finding that petitioner had met standard for evidentiary hearing); Gold v. Gold, 53 A.D.3d 485 (2d Dept. 2008) (same). In this case, the only change of circumstances identified by the Father is his switch from a generally or slightly pro-vaccine point of view to a strong hesitancy specific to the COVID vaccine. Evaluated in the light most favorable, it is not obvious that this change in the Father's point of view alone is sufficient to warrant a hearing on the Mother's status as the final decision maker for medical issues.

On the other hand, the parties' Stipulation specifically granted the Father the right to petition the Court for intervention when "the parties are unable to agree upon a decision." Stipulation, Article VIII "Custody and Visitation" ¶ 2. In general, a contract or agreement should be read to give each section meaning. See Weiss v. Weiss, 52 N.Y.2d 170 (1981) (interpreting residency clause in separation agreement); Zolotar v. NY Life Ins. Co., 172 A.D.2d 27, 30 (1st Dept. 1991) ("A contract should be construed so as to give full meaning and effect to all of its provisions"). The Stipulation does not require the Father to establish that any type of change has occurred to entitle him to petition the Court when he and the Mother disagree, and reading a change of circumstances requirement into the Stipulation would seem to render the negotiated language superfluous. Instead, it appears that the parties contracted away that particular limitation on his ability to petition the Court in situations where they do not agree. ^[2]

Based on the Stipulation, the Court finds that the Father's allegation of an unresolved disagreement on a medical decision is sufficient for the Court to hold a fact-finding hearing on the issue of final decision-making. See Walter v. Walter, 178 A.D.3d 991, 992-993 (2d Dept 2019) (holding that "the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was to modify the stipulation of custody so as to award him final decision-making authority with respect to the child without a hearing to determine whether an award of final decision-making authority to the plaintiff was in the best interests of the child); M.B. v J.B., 53 Misc.3d 1209 [A], 2016 NY Slip Op 51490[U] at *3-4 (Sup Ct. Kings Co. 2016) (hearing was necessary to determine if father's final decision-making authority on education should be transferred to mother).

Having found that a hearing was appropriate, the Court now considers what the Father must prove to prevail on his petition. The Court's overriding priority is to determine which resolution will serve the best interests of the child. See Eschbach v. Eschbach, 56 N.Y.2d 167, 171-172 (1982). Any determination of best interests is based upon the totality of the circumstances. See id.; Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 93 (1982). Although the parties' voluntary custody agreement is but one factor to consider, absent extraordinary circumstances, the court should give it great weight. Nehra v. Uhlar, 43 N.Y.2d 242, 251 (1977) ("Priority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement."). Therefore, in this case, the Father must show by a preponderance of the evidence that extraordinary circumstances exist such that it is in the best...