LOSING CUSTODY OVER COVID VAX

MATTER OF SOPER v. Soper, 2022 NY Slip Op 2125 - NY: Appellate Div., 2nd Dept. 2022:

"Andrew Soper (hereinafter the father) and Courtney Soper (hereinafter the mother) are the formerly married parents of three children. Pursuant to a stipulation of custody and parental access dated April 12, 2018 (hereinafter the custody stipulation), which was incorporated but not merged into the parties' judgment of divorce entered July 23, 2019, the parties agreed to joint legal custody of the children and to defer medical decisions for the children to specified pediatricians. In January 2020, the father petitioned to modify the custody stipulation so as to award him sole decision-making authority with regard to the children's medical care. The father alleged that the mother had violated the custody stipulation by obtaining medical care for the children from pediatricians other than those named in the custody stipulation, that the mother was refusing to give consent for the children to receive vaccinations, and that the youngest child had been prohibited from attending school until the school district received proof that the child was up to date on his vaccinations. In an order dated June 8, 2020, the Family Court granted the father's petition, and the mother appeals.

"Modification of a court-approved stipulation setting forth the terms of custody or parental access is permissible only upon a showing that there has been a sufficient change in circumstances such that modification is necessary to ensure the best interests and welfare of the child" (Matter of Burke v Squires, ___ AD3d ___, ___, 2022 NY Slip Op 00861, *2 [2d Dept]; see Matter of Bodre v Stimatz, 150 AD3d 1228, 1229). "`The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances'" (Matter of Burke v Squires, ___ AD3d at ___, 2022 NY Slip Op 00861, *2, quoting Matter of Cabano v Petrella, 169 AD3d 901, 902).

Here, the Family Court's determination is supported by a sound and substantial basis in the record. The uncontroverted evidence that the mother had refused to consent to the children receiving vaccinations recommended by the pediatricians named in the custody stipulation, leading to the youngest child being prohibited from attending school, constituted "a sufficient change in circumstances such that modification [was] necessary to ensure the best interests and welfare of the child" (Matter of Burke v Squires, ___ AD3d at ___, 2022 NY Slip Op 00861, *2). Furthermore, under the totality of the circumstances, awarding the father sole decision-making authority with regard to the children's medical care was in the children's best interests (see ___ AD3d at ___, 2022 NY Slip Op 00861, *2; Matter of Ednie v Haniquet, 185 AD3d 1029, 1030)."

CHILD CUSTODY - ANOTHER COVID VACCINE ARGUMENT

B.S. v. A.S., Redacted Index No., Date filed: 2021-12-21, Court: Supreme Court, Kings, Judge: Justice Jeffrey Sunshine:

".....

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”.3 As such, the immediate question 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 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 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

COVID, PARENTING AND VACCINE

C.B. v D.B., 2021 NY Slip Op 21268, Decided on October 7, 2021, Supreme Court, New York County. Cooper, J. :

"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 [*2]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.

BACKGROUND

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 [*3]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.

DISCUSSION

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 AD3d 486 at 486 [1st Dept 2019]) or is otherwise "inimical to the welfare of the child" (Matter of Granger v Misercola, 21 NY3d 86, 90 [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 AD3d 813, 816 [2d Dept 2020], quoting Matter of Velasquez v Kattau, 167 AD3d 912, 913 [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.

New York is transitioning towards a "new normal" where citizens are taking precautions to balance staying safe from COVID-19 and its variants alongside the desire to return to some semblance of regular life. The widespread availability of three different no-cost COVID-19 vaccines, with their continued, proven efficacy in preventing the spread of the virus and the development of serious symptoms in those who contract it, has resulted in the expectation that one must be vaccinated in order to participate meaningfully in everyday society. As of August 17, 2021, New York City requires everyone over the age of 12 to provide proof of vaccination to enter bars, restaurants, indoor entertainment, and gyms. New York City public employees, public school teachers, police officers, health care workers, and others are being required to be vaccinated in order to continue their employment. The Federal Government has mandated proof of vaccination or a recent negative COVID-19 test policy for workplaces with over 100 employees, and the same or both is required to travel to many foreign countries. Unvaccinated individuals can even be precluded from serving on juries before the U.S. Federal Court. And as of the last few weeks, the New York's Unified Court system is mandating vaccination for all court employees, including judges, clerks, and court officers, with those qualifying for a narrow range of exemptions required to submit to weekly testing.

Most relevant to this case, the child's preschool requires that teachers, staff, and any parent who participates in pick-ups or drop-offs or is otherwise involved in any school activity all be vaccinated. Defendant professes to love his daughter with all his being, and he asserts that he wants nothing more than to play an active and meaningful role in her life, which, presumably, would include dropping her off and picking her up from school and being part of her school [*4]community. Nevertheless, he adamantly refuses to do what his daughter's schoolmates' parents have all been required to do—be vaccinated.

Defendant's arguments against vaccination are unconvincing. In response to plaintiff's emergency oral application on September 2, 2021, defendant stated that because he already had COVID-19, he believed he carries sufficient antibodies to the virus. To this end, he asserted he would consult with his doctor and provide expert medical opinion as to if he should receive the vaccine, and if so, when. In his affidavit in opposition, however, defendant abandoned that argument and seemingly never consulted with a medical professional about being vaccinated. Instead, he adopted the novel position that his "religious beliefs as a Roman Catholic" precluded him from receiving the vaccine. This justification rings hollow given that Pope Francis, the head of the Catholic Church, is vaccinated and has encouraged Catholics everywhere to be vaccinated for "the common good." Defendant also sought to depict any vaccination requirement as an unreasonable intrusion on his rights as an American citizen. In doing so, he failed to recognize that those rights are not absolute but are subject to his duty as a citizen to other citizens and his duty as a parent to his child.

It is not necessary to more fully address defendant's reasons for not being vaccinated, be they medical, religious, or constitutional. This is because he was offered an alternative to vaccination: submit to regular COVID-19 testing. When presented with this option, defendant rejected it outright unless the plaintiff was subject to the same testing regimen. Given that plaintiff is fully vaccinated, and she has daily in-person contact with the child as her full-time residential parent, it is apparent that defendant's ultimatum was motivated by a desire to burden the plaintiff as opposed to a commitment to keeping his child safe.

In suspending defendant's in-person access on an interim basis, I am, of course, cognizant of the pronouncement of our Court of Appeals in S.L. v. J.R., 27 NY3d 558 (2016) that even temporary custody determinations should generally be made only after a plenary hearing. The Court recognized, however, that the "'general' right to a hearing is not an absolute one" (id. at 563). There are multiple reasons here not to deprive plaintiff and the GAL of the relief they seek without having to wait weeks or months for a plenary hearing. These include the exigency of the circumstances with the risk of imminent harm to the child, the already extensive experience I have with the parties and my familiarity with their issues involving defendant's parental access, and the fact that, by necessity, matrimonial courts routinely determine temporary access schedules—unlike determining custody—on motion papers and argument alone.

CONCLUSION

In the final analysis, the fundamental question in this dispute between the child's two parents is this: What matters more to each of them, his or her own interests or those of their child? On one hand, there is the defendant-father, who is unable to offer any reasonable, let alone compelling, reason why he should not be vaccinated or even undergo testing, resisting both simply because he sees it as his "right" to do so. On the other hand, there is the plaintiff-mother, who is fully vaccinated and observant of COVID-19 protocols, seeking the imposition of reasonable conditions on defendant's access not because it somehow benefits her, but because it serves to protect the health, safety, and well-being of the child.

Inasmuch as I find that requiring defendant and anyone regularly supervising his access to be vaccinated against COVID-19 or else undergo regular testing to be in the child's best interests, plaintiff's motion is granted. Accordingly, defendant's in-person parental access with the child is suspended until such time as he complies with the terms of the amended Temporary [*5]Restraining Order. Defendant shall continue to enjoy liberal virtual and telephone access with the child."

WORKING AND COVID 19 VACCINE

On March 12, 2021, Governor Cuomo signed legislation providing all public and private employees in New York up to four hours of paid leave per vaccine injection to obtain a COVID-19 vaccine.

Is 4 hours enough time? That would depend on when and where you are getting the vaccine which hopefully will expand further,

Section 196-C Labor Law:

"1. Every employee shall be provided a paid leave of absence from his or her employer for a sufficient period of time, not to exceed four hours per vaccine injection, unless such employee shall receive a greater number of hours pursuant to a collectively bargained agreement or as otherwise authorized by the employer, to be vaccinated for COVID-19. 

 2. The entire period of the leave of absence granted pursuant to this section shall be provided at the employee's regular rate of pay and shall not be charged against any other leave such employee is otherwise entitled to, including sick leave pursuant to section one hundred ninety-six-b of this article, or any leave provided pursuant to a collective bargaining agreement. 

3. The provisions of this section may be waived by a collective bargaining agreement, provided that for such waiver to be valid, it shall explicitly reference this section of law."

Public employees are covered by Section 159-c to the New York Civil Service Law.

MANDATORY VACCINATION?

On December 4, NYS Assembly Bill A11179 was introduced to amend the Public Health Law and require a COVID-19 vaccine to be administered in accordance with the department of health's COVID-19 vaccination administration program and mandates vaccination in certain situations.

The bill can be viewed at https://www.nysenate.gov/legislation/bills/2019/a11179

The U.S. Occupational Safety and Health Administration (OSHA) and the U.S. Equal Employment Opportunity Commission (EEOC) in 2009 issued some guidance in response to the H1N1 virus regarding an employer-mandated flu vaccine. Generally, the American with Disabilities Act (ADA) requires covered employers to provide a reasonable accommodation to qualified individuals with a disability, and Title VII of the Civil Rights Act of 1964 (Title VII) requires covered employers to reasonably accommodate qualified individuals’ sincerely held religious beliefs. And In New York, immunization requirements exist for school students and health care personnel working in certain health care and residential facilities and agencies