Opinion
XXXXX/2019
07-01-2020
A.S., Plaintiff, v. N.S., Defendant.
Attorneys for A.S. are Judy White, Esq. and Michelle Spector, Esq. Attorney for N.S. is Christine Weinberg, Esq. Attorney for the Child is Dawn Cardi, Esq.
Attorneys for A.S. are Judy White, Esq. and Michelle Spector, Esq.
Attorney for N.S. is Christine Weinberg, Esq.
Attorney for the Child is Dawn Cardi, Esq.
Tandra L. Dawson, J. Trial of this matter is scheduled to proceed on July 13, 2020. Given the COVID-19 pandemic, New York courts are presently only conducting virtual hearings. Counsel for the mother, A.S. has consented to proceed virtually on July 13th, while the Attorney for the Children (AFC) and counsel for the father, N.S. have objected, noting the limitations and difficulties involved in virtual hearings. All counsel have submitted a memorandum or affidavit in support of their respective positions, which the court has reviewed and considered. For the reasons below, hearing in this matter will proceed virtually, and over counsel's objections.
While the court is cognizant of the limitations and inherent difficulty involved in conducting virtual hearings, counsels' objection do not set forth a prejudicial basis to further delay the hearing. Given the unpredictable nature of the COVID-19 pandemic it is unknown when court operations will return to normal in-person procedures, particularly given a resurgence is anticipated, if not already occurring, with multiple travel bans and advisories in effect. The court is mindful that compelling in-person attendance, in a courtroom, could subject vulnerable individuals to an increased risk of harm. Virtual technology would remove that risk. Indeed, courts have been utilizing and/or relying on virtual or remote technology in the pre-COVID19 era. See, 22 NYCRR 217.1 [a]; Omnamm L. v. Kumar L. , 177 A.D.3d 973, 975–76, 113 N.Y.S.3d 186, 189 (2d Dept. 2019) (court did not err in proceeding to fact-finding where interpreter appeared remotely in neglect hearing as father not denied right to meaningfully participate); Matter of Olivia G. , 173 A.D.3d 1688, 99 N.Y.S.3d 919 (4th Dept. 2019) (incarcerated father's contention that his ability to understand the termination of parental rights virtual proceeding was limited by inadequate services of interpreter lacked merit); Bagot v. McClain , 148 A.D.3d 882, 883, 49 N.Y.S.3d 175, 176 (2d Dept. 2017) (father's contention that he was denied due process due to faulty videoconference lacked merit); 46 Downing St. LLC v. Thompson, 41 Misc. 3d 1018, 1029–30, 976 N.Y.S.2d 761, 769–70 (Civ. Ct., N.Y. Cty. 2013) (video-conferencing of inmates in housing court cases preferred). New York state recently amended Chapter 126, Part D, and Chapter 123 of the Laws of 2020 (effective July 17, 2020 and expiring April 30, 2021) to add a new Criminal Procedure Law § 180.65 that allows virtual preliminary hearings on felony complaints. Neighboring jurisdictions have squarely addressed this issue in light of the pandemic and issued administrative orders directing that most hearings continue even over attorney objections, with exceptions for certain matters including sentencing, termination of parental rights, mental incapacity hearings or matters that involve a reasonable likelihood of a jail sentence or loss or suspension of license, none of which apply here. (See, New Jersey Supreme Court Administrative Order dated April 20, 2020, https://www.njcourts.gov/notices/2020/n200420a.pdf?c=8vE)
This is an extremely protracted custody litigation involving three young children who will be negatively affected by further postponement given the intense acrimony between the parties and their inability to co-parent on even the most miniscule issues, which often extends itself to demonstrable hostility between counsel. Indeed, rarely does a week go by without multiple emails and requests from counsel regarding minor disputes that they are unable to resolve amongst themselves. The attorneys have also presented extremely polarized positions on facts as well as their interpretations of various expert opinions. Indeed, the court has had multiple lengthy telephone conferences with counsel, often taking two to three hours each. The court has had ample opportunity to observe the parties' demeanor and credibility during multiple court appearances during this matter and the criminal proceeding, as well as during an all-day hearing in January of this year related to the parties' newborn. Further delay is not in the children's best interests. The court notes that significant resources have already been expended, and to further delay would only drive up legal fees and increase expensive motion practice, thereby causing harm to both parties, as well as the children. The AFC's argument that requiring this virtual trial to proceed would cause her to put the health and safety of her staff at risk is unavailing. Staff and attorneys need not be in the same conference room or even in the same building to prepare for trial. Indeed, the AFC recently filed a motion, timely filed memorandums and witness lists, and has actively participated in the proceedings and has never once indicated that she has not had access to her files. The court will endeavor to address counsel's concerns as to other logistical issues during a virtual court appearance on July 2, 2020.
Accordingly, counsel is directed to provide the clerk (XXXXX) with contact information for all counsel and the parties, as well as witness contact information and anticipated dates of testimony on or before July 7, 2020. The court further notes that the IDV courtroom is open to the public and the proceeding will be able to be viewed in the IDV courtroom should any members of the public wish to do so.