COVID AND CHILD CUSTODY

Was this case decided in the spirit of the letter published in the NYLJ on March 27 from Judge Sunshine of Supreme Court (see https://jmpattorney.blogspot.com/2020/04/to-parents-in-current-custody-disputes.html)?

R.M. v. B.S., NYLJ April 27, 2020, Date filed: 2020-04-16, Court: Supreme Court, Bronx ,Judge: Justice La Tia Martin, Case Number: 36789/2015:

"The plaintiff (father), pro se litigant, seeks an Order directing the defendant to adhere to the parental access schedule listed in the April 5, 2019 schedule. He contends that the defendant has violated the parties’ parenting agreement executed on June 7, 2016 and June 22, 2016 and so-ordered stipulation and agreement dated March 4, 2019. He asserts that the defendant denied him parenting time March 24, 2020 in violation of the parties’ parenting agreement which indicates that he may request midweek parenting time. He indicates that the defendant stated that she denied said parental access because he is a first responder from a state with high exposure and he had not been quarantined for fourteen (14) days. The plaintiff contends that prior to the current health crisis the defendant denied he was willing to pick up the children afterschool and return them after work. The plaintiff further asserts that that on March 25, 2020 the defendant indicated that she is suspending parental access at that time and would allow parental access when she is able to do so. He contends that the defendant ignored his communication that he works at the World Trade Center which has been closed and he would have virtually no interaction with the public. He further indicates that the defendant has also ignored multiple requests to compromise by allowing the parties’ children to visit at his brother’s home in New Hampshire. The plaintiff further contends that the defendant has refused to allow him to engage in a private phone call or face time with the parties children. He asserts that she consistently hangs up on him if he asks the children about their homework. The plaintiff asserts that he has not seen the parties’ children in forty (40) days.

In opposition, the defendant, mother through counsel argues that the plaintiff’s application is an attempt to harass and intimidate the defendant. Defendant’s counsel contends that the defendant remains fearful that if the father has access with parties’ children over spring break(Friday, April 10, 2020 at 7am to Friday to April 17, 2020 at 6 p.m. to travel to/from Massachusetts) he will not ensure the safety of the children due to the pandemic coronavirus. Counsel indicates that the plaintiff is a first responder and resides in a New York City, a state with high exposure to coronavirus. Counsel asserts that neither the plaintiff or his brothers(that often care for the children in New York and the one who lives in a one bedroom apartment in New Hampshire) have been quarantined for fourteen days or taken the coronavirus test. Counsel indicates that the defendant resides with the children in Massachusetts and has been sheltering at home with them. She further indicates that one of the children has underlying respiratory issues and uses an inhaler. Counsel further indicates that the defendant and the parties’ children reside in house with a private backyard where the children have space to enjoy fresh air safely. She asserts that the plaintiff was offered face time and telephone access and choses not to avail himself of same. Counsel asserts that privacy is not an issue. Counsel further contends that the plaintiff enjoyed parental access with the parties’ children for the February break (February 16, 2020 to February 23, 2020). Counsel asserts that the plaintiff worked four of the days during the February break and had his brothers care for the children after fighting for these dates in Court. Counsel asserts that the plaintiff requested midweek parental access on same day notice which the defendant denied as the parties agreement provides for thirty (30) days notice. Counsel also indicates that the children are playing kill zone and watching walking dead which is inappropriate. Counsel further argues that the dates requested are not school break dates for the boys and the defendant is the residential custodial parent responsible for home schooling the children. Counsel indicates that spring Break is April 20-24, 2020. Counsel indicates that the defendant notified the plaintiff that she did not know when he could resume parental access because it will be determined by the scientist and government as to when it will be safe to reopen the country.

In reply, the plaintiff asserts that according to the children the defendant has had guests sat their home during this period of quarantine. He also argued that Massachusetts has the third highest cases of coronavirus behind New York and New Jersey. The plaintiff indicates that he works at the world trade center which has been closed since March 13, 2020 and does not have interaction with the public and does not take public transportation to work. The plaintiff further contends that he did not choose to work during the children’s February break but was unable to take off because the senior sergeant had priority over requests for vacation time. The plaintiff further asserts that the children do not engage inappropriate behavior during his parenting time and focuses on academic enrichment. The plaintiff indicates that this is the third time in one year that he has had to contact the court to intervene regarding parental access. He further argues that the parties’ agreement indicates that he must seek midweek access at his earliest availability. He asserts that the thirty days refers to if his schedule changes and is unable to exercise parental access every other weekend.

The parties’ So-Ordered Stipulation and Agreement dated April 5, 2019 outlined a detailed parenting schedule for the parties for 2019 and 2020 and indicates in pertinent part that

“2. The Plaintiff shall have parental access with the parties’ children on the following dates in 2020:
February School Break TBD-Sunday, February 16, 2020 at 2p.m. -Sunday, February 23, 2020 at 2 p.m.

April School Break TBD-Friday, April 10, 2020 at 7 am at mother’s residence to Friday, April 17, 2020 at 6p.m.…without prejudice to school calendar changes.”

The Court held a conference via skype for business on April 13, 2020 in which both parties and defendant’s counsel were present. The Court clearly recognizes the rights of the plaintiff as non-custodial parent to exercise his previously agreed upon parental access. Unfortunately, this current public health crisis has upended the lives of us all. However, in light of the unprecedented Covid-19 virus pandemic throughout the nation the Court shall temporarily set forth a new parental access schedule for the plaintiff. It is in the best interest of the parties’ children for their safety at this time to implement the new, although temporary, access schedule. Based upon the record provided herein, the plaintiff shall be entitled to daily telephonic/skype access at 6.p.m. The defendant is hereby ordered to facilitate but not to interfere at all with said access. Accordingly, the Court hereby denies the plaintiff’s application for in person parental access during the April 2020 recess. However, the Court shall entertain an application for additional time at a later date. Additionally, the court hereby reserves decision on plaintiff’s application directing the defendant to adhere to the parental access schedule for the remainder of the year. The parties and counsel shall appear via Skype Business for a conference at 12 p.m. on May 29, 2020 to address the outstanding issues."