Opinion
Docket No. V-XXXXX-19
12-02-2019
L.N., Petitioner, v. V.V., Respondent.
Basic Background; Procedural History
In this custody proceeding, the main issue for this Court's determination is who shall be the final decision-maker for the parties' eight-year old daughter, V. V's mother, L.N. ("the mother"), the only petitioner herein, and her father, respondent V.V. ("the father"), agree that, since they split in 2012, they have been sharing 50/50 physical custody of V, and, with some success, joint legal custody. The mother does not ask the Court to disturb this joint physical and legal custodial arrangement, and the preponderance of the evidence established that such arrangement is in fact in V's best interests. The mother asks only for final say on those matters upon which the parties cannot agree.
They cannot agree on whether V should be vaccinated, and it is this disagreement that gave rise to this litigation.
V, now eight years old and in the third grade, has never been vaccinated. Public Health Law §2164 ("PHL §2164") mandates the vaccination of children against measles and other childhood diseases prior to their attending school. The prior version of PHL §2164 contained an exemption from vaccination "for children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein require." PHL §2164(9). V attended PS 2** — a school in which she thrives, has many friends, and is happy — since kindergarten pursuant to this religious exemption. On June 13, 2019, however, the New York State Legislature amended PHL §2164, by, inter alia, eliminating the religious exemption. Under the new law, V may only avoid vaccination and remain in school if she qualifies for a medical exemption: if a "physician licensed to practice medicine in this state certifies that such immunization may be detrimental to a child's health." PHL §2164(8).
The parties agree that V is not eligible for a medical exemption under PHL §2164(8).
The mother wants (and always wanted) V to be vaccinated; the father adamantly does not. The issue came to a head in light of the measles outbreak in Brooklyn this year, and the change in the law.
On September 3, 2019, the mother commenced this proceeding by filing a custody Petition , in which she seeks an order of joint legal custody with final decision-making authority to her "in case of disagreement," and "a parenting time schedule that continues to equally divide time" with V. The father did not file his own custody Petition.
Together with her Petition, the mother filed an Order to Show Cause seeking a temporary order of custody permitting her to vaccinate V so she may stay in PS 2**. On September 19, 2019, the father filed an Order to Show Cause opposing the mother's motion and seeking an order prohibiting vaccination. During oral argument on the motions, this Court explained that the legal issue in this proceeding is not whether V should be vaccinated, but is who gets to make that decision, which required a full and fair trial. Consequently, both parties withdrew their motions and this case proceeded to trial on an expedited basis.
On September 30, 2019, this Court issued an Order directing that V remain enrolled in PS 2**, that neither party shall make any changes to V's schooling, or any decisions on vaccination, pending final determination on the custody issue.
The trial took place on September 30; October 10, 17, 28; and November 6, 7, 20 of 2019.
On October 7, 2019, just prior to the second day of trial, V was excluded from PS 2** and, to date, she has not returned to school (but is still enrolled). Pursuant to Order of this Court, the parties have been working with the principle and teachers of PS 2** to ensure that V stays up to date with her lessons and remains enrolled in PS 2** pending determination of this matter. During the trial, the father moved, by order to show cause, for an order directing the mother to sign a "Letter of Intent," the admitted effect of which would un-enroll V from PS 2** with no guarantee that she would be re-enrolled. The Court declined to sign the Order to Show Cause.
V has been out of school since October 7; she has missed 36 school days as of the date of this Decision and Order.
Final Decision Making Authority is Awarded to the Mother
As more fully set forth below, based on the totality of the circumstances, and having weighed the evidence and assessed the parties' credibility, the preponderance of the evidence supports an award of joint physical and legal custody with final decision-making authority to the mother. Among other things, the credible proof demonstrated that the mother has, and is better able to, put V's best interests ahead of her own. In addition, the mother has successfully collaborated with the father on decisions for V, despite her own beliefs and preferences. If awarded final decision-making authority, the mother is likely to continue to act in V's best interests and to meaningfully engage the father in the decision-making process. On the other hand, the evidence showed that the father has put his own interests ahead of V's best interests. The Court further finds that, if awarded final decision-making authority, the father is un-likely to meaningfully engage the mother in the decision-making process, particularly if it involves matters on which he holds a strong belief.
Trial Testimony and Documents in Evidence
In support of her petition, the mother offered the testimony of: the father; Derek W., V's second grade "Gen Ed" teacher ("Mr. W."); herself; and her mother, M. M-N. ("Mrs. M-N."). The mother also offered into evidence, on consent, the following evidence: photographs (Petitioner's Exhibit No.1); various e-mails between the parties on the issue of vaccination (Petitioner's Exhibits #2, #3, #4); a letter, signed only by the father, stating that V has a religious exemption to vaccinations (Petitioner's Exhibit #5); the father's affidavit, sworn to on September 19, 2019, in support of his motion to prohibit the mother from vaccinating V (Petitioner's Exhibit #6); V's PS 2** school records (Petitioner's Exhibit #7); V's certified medical records from T.P. [her doctors] (Petitioner's Exhibit #8); and therapy records (Petitioner's Exhibit #9).
In opposition to the petition, the father offered the testimony of himself and his mother, T. A. ("Mrs. A."). He offered into evidence two e-mails, each dated August 27, 2019, that he sent to the mother regarding vaccinations (Respondent's Exhibit #1), and a copy of an August 28, 2019 text from Mrs. A.'s phone (Respondent's Exhibit #2).
The Court met with V, accompanied by the Attorney for the Child, in camera for a Lincoln hearing.
The Court took Judicial Notice of PHL §2164; New York State Department of Education Part 100 Regulations (regarding homeschooling); and a printout from the Medical Board of California Licensing Details for Dr. Robert William Sears.
Findings of Fact
An initial, and general, word on the parties' credibility. The mother and the father presented, for the most part, with equal strengths. Overall, however, the Court finds the mother to be highly credible, and the father to be less credible. The mother presented as calm, reasonable, and honest and testified in a clear, straightforward, consistent, and convincing manner on all material and relevant issues. Her temperament and demeanor in Court were steady and sincere.
On the other hand, the father presented as somewhat defensive and argumentative. His testimony on material and relevant issues was inconsistent and contradictory. His temperament was not steady, and he became visibly angry at times.
Both parties are educated and successfully employed. The mother works full-time as a communications director at a non-profit organization in the Bronx. The father works full-time as a labor educator with a union in Manhattan. They each live in Brooklyn, alone, but with V during their respective parenting times.
The parties met nine years ago and were dating when V was born on March 13, 2011. They have never been married. During the pregnancy, the father moved into the mother's apartment, where they lived together until they split in or about September 2012 when the mother and V moved out of the apartment and moved in with the mother's parents. The father continued to live in the apartment for eight months, and the mother continued to pay one-half of the rent. The father did not give the mother any monetary support for V until the parties reached a co-parenting agreement in 2013 pursuant to which they share costs based on their salaries (40% by the mother, 60% by the father). When asked on cross-examination why the mother continued to pay one-half of his rent after she moved out of the apartment with V, the father blamed the mother for making him homeless.
Each party gave their own reason for the end of the relationship. The mother claims the father is controlling and prone to anger. The father claims that the mother left him for another man and is erratic. They each offered evidence of incidents from their past to support their respective claims against the other. By this Court's count there were eight incidents: one in a bar when the parties were dating; one in "Babies R Us" before V was born; one on March 16, 2011 in the car as the parties were driving home from the hospital with V; one on the subway while V was an infant; two in June of 2012 when the parties were separating; one in a coffee shop after the parties had separated; and one in December 2012 to discuss the Christmas holiday. The Court gives some, but not a lot, of weight to the parties' testimony about these incidents as they occurred either before V was born, or over 6 years ago during their troubled romantic relationship, or at the end of the relationship during which these types of disputes and disturbances often occur. In addition, it is undisputed that the parties have been co-parenting V with relative success, and without major disturbance, for the past six years.
The Court considered the parties' testimony on these issues solely as it relates to their temperament and overall credibility. The Court credits the mother's claim that the relationship ended because the father is controlling and prone to anger; her testimony as to the incidents demonstrating his behavior in this regard was consistent and convincing. Indeed, the father himself testified that he actually counted how many diapers the mother changed during V's infancy — a total of "three" by his count. The Court discredits the father's claim that the mother's infidelity caused the relationship to end, as it was based solely upon his suspicion and not supported by other evidence. The Court also discredits the father's testimony that the mother is erratic and that her decision to end their relationship was heavily influenced by movies (specifically, "Eat, Pray, Love") and pregnancy hormones. However, the Court does credit the father's claim that the mother threw a book during a December 2012 dispute about where V would spend the Christmas holiday.
Following the aforesaid December 2012 dispute, the parties engaged in mediation at the New York Peace Institute to attempt to arrive at a co-parenting agreement. They went to several sessions between February 2013 and May 2013 but did not enter into a written agreement. However, they did reach an oral agreement to share joint physical and legal custody of V, and they have been raising V under this agreement for the past six years.
As to physical custody, the mother has V on Mondays and Tuesdays, the father has her on Wednesdays and Thursdays, and each parent alternates weekends which includes Fridays; they have "special agreements around the holidays." The parties did not provide any details as to their "special agreements" for holidays and summer, other than they are consistent with a 50/50 split of time. There is no basis in the record to disturb the parties' joint physical custody of V.
As to the major decisions in V's life, as well as her day-to-day life, the Court finds that the parties engaged in joint decision-making, or co-parenting, for the most part. The Court makes the following specific findings on this issue. Parenting Skills and Decision-Making
The testimony of Mrs. M-N. and Mrs. A., the grandmothers, as to each parents' fitness and parenting characteristics, while credible, was of limited value. Each is an interested witness for their own child. Moreover, the Court had ample evidence, by way of the parties' own testimony, to make findings on this issue. However, the Court does credit the testimony of Mrs. A., that the father is a compassionate and thoughtful father to V, and that he researches all things relating to her care and well-being. The Court also credits Mrs. M-N.'s testimony that the mother is a loving mother deeply interested and involved in V's daily care and decision-making.
The parties themselves approached the proof on the other's parenting skills and decision-making processes differently. The mother did not challenge the father's parenting skills or decision-making process for matters other than vaccination. On this issue, she testified that the father initially agreed to delayed vaccinations for V but has since changed his position to no vaccinations, a position which is non-negotiable for him. She also testified that the father has directed V to object to vaccinations in accordance with his own personal beliefs. The mother's testimony on this issue was consistent, clear, and credible.
On the other hand, in an attempt to discredit the mother's decision-making process in all matters, the father testified that the mother is heavily influenced by her parents, her present boyfriend, and movies, and will flip-flop in her positions based upon who is next to her. The Court finds the father's testimony on this issue incredible, and instead credits the mother's testimony that she makes decisions "based on my own opinions after doing research and whatever I need to do, to make sure that I'm making the right decision." The Court declined to allow, as immaterial and irrelevant, the father to testify about the mother's "boyfriends" whom she allegedly introduced to V without his knowledge or consent. The father's testimony about "boyfriends" was not corroborated by any other witness, and there was no credible evidence that the mother placed her own interests ahead of V's best interests in any way, particularly not with respect to her own personal or romantic life. The Court discredits the father's testimony that the mother makes "unilateral" decisions and "steamrolls" him. Indeed, he admitted that the parties "normally openly" discuss decisions for V, and that he takes the lead on certain decisions. V's Doctors : T.P.
During the mother's pregnancy, the father researched pediatricians, found T.P., and shared the information with the mother who agreed to choose T.P.for V. T.P. has been V's pediatricians since birth. Both parties have made appointments for V at T.P. and attended V's well-visits. Neither party objected to the care V has received at T.P.
T.P.'s certified medical records contained a note about alleged sexual abuse when V was 3 and 4 years old. The parties were questioned at length about the record entry and explained, credibly and consistently, as follows. In May of 2014 and March of 2015, the program director of V's afterschool told the mother and the father that V made "dramatic" sexualized statements. The parties immediately talked with each other to determine what to do. They brought V to T.P. for examination; the pediatrician found no evidence that V had been physically or sexually abused. They brought her to a therapist, who also found no evidence of abuse (Petitioner's Exhibit #9). Since the completion of therapy, V has not made any other or further sexualized statements.
The father only recently took issue with T.P., adamantly claiming that Nurse Practitioner J.L. would not talk to him about his vaccination concerns during V's August 28, 2019 well-visit. The father admitted, however, that Nurse Practitioner J.L. did in fact speak to him during the visit, advising him that T.P.'s executive director is involved in the vaccination issue. The father did not attempt to follow up with T.P.'s executive director about his concerns — as the mother did — because of unspecified, unsubstantiated "trauma." V's Extra-Curricular Activities
The mother chose all of V's extra-curricular activities this school year: piano instruction on Mondays; Game Lab on Tuesdays; sports program at the YMCA on Wednesdays; and Taekwondo lessons on Thursdays. The mother picked each of these activities and negotiated the prices therefor; the father "absolutely" approved of each one and paid his 60% share of the cost.
The majority of V's social life is connected to her school district, and the mother is actively involved in V's Brooklyn social life. The father brings V to visit her paternal grandparents in Connecticut, where she also has friends, every other weekend. The Daily Role of the Maternal Grandparents in V's Life
The mother's parents, Mrs. M-N. and her husband, have participated in the daily care of V for virtually her entire life. When V was still an infant, the mother arranged for her parents to pick V up from day-care and take care of her until either the mother or the father got home from work. This has been V's routine to date.
Mrs. M-N. and her husband pick V up virtually every day from school or from her extra-curricular activities; they "supervise" her homework; make dinner and otherwise care for her, until her mother is home from work. Mrs. M-N. feeds V from the list of foods prepared by the mother. They take care of V after-school even on the father's parenting time days — they pick her up, do homework, feed her, and the father then picks V up from their home.
Mrs. M-N. is not paid to help with V, nor are her expenses reimbursed. She does it as a labor of love for her granddaughter. V loves, and is deeply bonded to, her maternal grandparents. PS 2**
The parties collaborated on choosing V's pre-k, kindergarten, and elementary school. They researched the schools in District 15, where V lives with the mother, made their choices, and submitted applications first for pre-k, then for kindergarten. Although the parties made PS 2** their first choice for pre-k, she did not get in and instead attended PS 1**. V got into PS 2** for kindergarten, and has attended PS 2** for kindergarten, first grade, second grade, and third grade until her exclusion on October 7, 2019.
Everyone agrees, and the overwhelming evidence establishes, that PS 2** is a good school and supportive of V; that V is thriving there; and V has many friends at school and is happy to go to school. The father has "no issues" with PS 2** and believes she should still attend that school but for the vaccination issue. According to V's school records (Petitioner's Exhibit #7), she has achieved 3s and 4s in everything.
Mr. W., V's second grade "Gen Ed" teacher, and her science teacher this year, testified. This Court finds Mr. W.'s testimony to be highly credible and convincing. Mr. W. has been a teacher for eighteen years and has been an elementary teacher at PS 2** for eight years. He explained that V's second grade classroom was an "ICT," or inclusion, classroom, which contained "general educated students and students with special needs." V's class had "about twenty-six students," including ten special needs students, and a special educator and three paraprofessionals. They had six periods of "Gen Ed" each school day, and V spent a "large part of the day" interacting with the other students.
Mr. W. testified that in his 18 years of teaching, V
. . . is one of the best students that I've ever encountered. From a holistic approach, I'm talking about her heart. Who she is as a person. What she's passionate about. What she cares about. And also academically she was above grade level in everything. She was great in all subject areas. This is not a normal second grader. She was exceptional as a student.
According to Mr. W., V was "extremely successful" in the school atmosphere, and a "great leader to her peers and a great asset to me as well." V led "group discussions"; was "not afraid . . . to answer a question"; is "generous" and "always kind and respectful to everybody"; and "can express herself very well." According to Mr. W., V cares about helping people and is "big on equal rights." She stood up against bullying and was a help to everyone including the special needs kids. Mr. W. attributed V's good character to her "good parents," with whom he had "wonderful interactions." Mr. W. thinks "very highly" of V's parents, and described them as "very, very supportive," and "both great parents and they're both equally involved."
Mr. W. described V as a "very social young lady," who has "lots of friends." He testified that in second grade she was "pretty friendly with everybody in the classroom" and "had a pretty strong crew . . . of probably like five or six people." According to Mr. W., V cares about her friends, "is not afraid to stand up for them and do the right thing," and is "very, very supportive."
The testimony of Mrs. M-N., and the parties, corroborated Mr. W.'s testimony. Mrs. M-N. — who is an educator with a B.A. in elementary education, a Master's Degree in teaching the Spanish-speaking child, and a Doctorate in developmental psychology — testified that she observed V interacting in her classes with her friends and other classmates. According to Mrs. M-N., V "loves" her school. V is "definitely a leader in the class"; she "works collaboratively" and "gets along" with, and "helps" the other children in the classroom; she is "very productive"; and "does very well in school generally."
The mother testified that PS 2** is supportive of V because there is a lot of "coverage in the classrooms," and V gets to be in clubs. V has
. . . thrived in her school setting. All of her teachers think she's a wonderful student. She's—you know—she had some issues with reading but she worked through them and now she's actually above level in all of her—in everything. In math, in writing, reading, science. Her drama teacher loves her. She's gotten leads in plays. Her music teacher loves her. She got a lead in the musical performance—the only second grader to get a lead in the performance. So it's an environment that she feels comfortable in as far as—I can't speak for her—but as far as I know. An environment that's very supportive of her.
The father testified that V has a core "tight group" of friends at school, called the "Misstahs," which started in kindergarten; V is "ranked number one" of the group. When asked whether V would be happy if she had to leave PS 2**, the father testified "No, I think she likes her school." Indeed, the father testified that he has "no issue whatsoever" with PS 2**, and that but for the vaccination requirement, V should continue to attend PS 2**. Vaccinations
The overwhelming credible evidence establishes, and this Court finds, the following facts on the issue of vaccination.
The father objects to vaccinations; his position on this issue is absolute, non-negotiable and has, in his own words, been "consistent from day one." The father testified clearly, consistently, and adamantly that he never agreed to vaccinate V, and he will not consent to vaccinate her now. According to the father, his position against vaccinations is based upon his Buddhist beliefs, which require a commitment not to harm. He offered his testimony and the testimony of his mother, Mrs. A. to establish that he is a Buddhist.
However, as PHL §2164 no longer provides an exemption for religious beliefs, it is not within the purview of this Court to determine the sincerity or depth of the father's religious beliefs. Suffice to say that the Court finds only that the father believes in certain Buddhist principles. Other than the trial testimony about the Buddhist commitment not to harm, the father offered no evidence of his Buddhist practice (if any), his Buddhist community and spiritual leaders, or the like. There is no proof that V is being raised as a Buddhist. According to the mother, whose testimony this Court finds to be credible, the father's decision not to vaccinate V was a medical, not religious, decision.
In any event, the Court's finding is the same whether the father is a practicing Buddhist, or simply follows some of its teachings: from day one, the father does not want V to be vaccinated. He explained:
. . . . So in terms of me not making a commitment not to harm my daughter, I've had to do extensive research around vaccines, what's in vaccines. And I take it vaccine by vaccine, disease by disease. I weigh the risks and the benefits from doing those vaccines or not doing those vaccines. And that's how it's been from day one with [the mother]. I
always said, I take it vaccine by vaccine, disease by disease. I do my research on both the vaccine and the disease. And I weigh out the risks and I weigh out the benefits. And so far every single moment, as things have changed, the risks always outweigh the benefits. And that's what my belief is. And that is consistent from day one to now.
The father's "research" and opinion on vaccines is based upon the "package inserts" which state "all the contraindications and the adverse reactions that could occur." The father could not identify the risks of vaccinations other than "brain damage, encephalitis" and "seizures," or give details as to which vaccines cause which harms, stating "I don't know all of this information from memory. I'm not a doctor." When asked whether the commitment not to harm would allow for V to be vaccinated to avoid transmitting diseases to others, the father testified that "I don't know how to respond to this question."
On the other hand, the mother always wanted to vaccinate V, albeit on a delayed schedule. She believed the father when he told her that he agreed to a delayed vaccination schedule, and her testimony is supported by documentary evidence: to wit, the father's February 17, 2015 e- mail in which he noted the mother's "willingness to trust my views delaying certain vaccines" (Petitioner's Exhibit 4; see also Respondent's Exhibit #1). Therefore, the mother agreed to not vaccinate V
. . . because I knew that V was in an environment where most children were vaccinated. So there's a thing called herd immunity, which means that it's less likely for a child to be infected when they're around— when they're in a community where most children are vaccinated. And because I did not want to incite any kind of conflict, ire—you know—in our co-parenting relationship I decided to let that issue go.
The mother explained that when she said she did not want to raise "ire", she meant that she did not want "to create a situation of intense anger and fear that I would experience from the father." The Court finds the mother's testimony on this issue highly credible.
The mother listened to the father's concerns about vaccinations and took them seriously; the father admits as much. In fact, the mother agreed to delay vaccinating V based on the father's concerns and his assurance that V would be vaccinated in time (Petitioner's Exhibit #4).
Conversely, however, although the father may have listened to the mother's position on vaccinations, he never really considered her position or concerns at all and sought only to convince her of his position against vaccinations. The Court finds that when the father told the mother that he was "open to discussing" whether V should receive certain vaccinations, he did so to further delay the issue with no real intent to vaccinate V. His testimony made this unequivocally clear: at one point he testified that there's "always been a question about when V might get" vaccinated, he then promptly answered "no" when asked whether she could get vaccinated now.
The father took the lead in refusing vaccinations at the doctor and obtaining a religious exemption for V to attend day care and then public school. The mother acquiesced, but, to her knowledge, "never signed the religious exemption" (Petitioner's Exhibit 5). She admitted that T.P.'s records contain her objections to vaccinations for V.
The vaccination issue came to a head this year during the measles outbreaks in Brooklyn, which directly affected V's "immediate environment." The mother became "very concerned" that V was not vaccinated, and "felt that it was an imminent issue to get my daughter vaccinated so that she could be healthy and be in school like other children."
Once the law changed, however, the father immediately took every action to ensure that V would not be vaccinated. He attempted, unsuccessfully, to obtain a medical exemption for V. In June, he brought V for blood tests to determine if she "had immunity to the diseases that were in the law." He did not tell the mother about the blood test and did not get her consent to have V's blood drawn. Upon learning that V does not have such immunity, the father did his own research on "doctors who are experts" on heavy metals contained in vaccines. He did not ask T.P. — V's pediatrician all her life — to perform heavy metal testing on V or for referrals to specialists.
On August 5, 2019, the father took V to Dr. F., a cardiologist, for blood and hair follicle testing. The mother knew about the appointment with Dr. F. but understood that the father "was going to move forward with" a delayed vaccination plan. In his letter dated August 26, 2019, Dr. F. found that V has high levels of heavy metals, "one copy of the MTHFR 677 gene," and recommended that V start a "natural antioxidant" and that V not be vaccinated (Petitioner's Exhibit #8).
Dr. F. did not certify, find, or opine that vaccination would be detrimental to V or that she is entitled to a medical exemption from vaccinations. The pediatricians referred by Dr. F., N.W.C., also did not, and could not, issue a medical exemption from vaccines for V because she "is healthy with no allergies or any major developmental issues" (Petitioner's Exhibit #3).
The father admits that V is not entitled to the medical exemption under PHL §2164(8).
On August 27, 2019, the father e-mailed Dr. F.'s letter to the mother and to T.P., and personally delivered to T.P. a copy of the letter together with his own letter stating that he does not consent to any vaccines being administered to V (Petitioner's Exhibit #8). He also sent the mother two e-mails setting forth Dr. F.'s findings, suggesting the parties go to mediation, and advising the mother that he "will begin to put some ideas together" for V's schooling (Respondent's Exhibit #1). On these e-mails, to which V's confidential medical information was attached, the father copied various persons not otherwise entitled to such information, to wit: several of the father's friends or acquaintances (R.L., P., D.S.).
On August 28, 2019, the parties brought V to her well-visit, conducted by Nurse Practitioner J.L.. T.P.was in possession of Dr. F.'s letter and the father's letter of "no consent" during the well-visit. The Court discredits the father's testimony that Nurse Practitioner J.L. did not address the vaccination issue during the well-visit, as he later admitted that she did talk to him; he just did not like her answer.
Following the well-visit, the parties got into a confrontation outside of T.P.'s office as a result of the father attempting to secure the mother's "assurance" that she would not vaccinate V. Mrs. M-N. and her husband were present and involved in the confrontation; Mrs. A. heard it over the father's phone. Each party, and each grandmother, testified as to what happened. The truth will only ever really be known by the uninterested observer who may not exist and certainly who did not testify at trial. Suffice to say that, having assessed the credibility of each witness overall and then specifically on this issue, the Court finds when they exited T.P., the father, admittedly in fear and hysterical, pursued the mother up and down the block to obtain her assurance that she would not vaccinate V. The mother calmly told him that she would discuss the matter with him later, as she had to get to work. Having failed in his attempt to secure the mother's assurance, he turned his attention to Mrs. M-N., who also did not provide such assurance. Tempers flared and voices were raised. All of this occurred in the presence of V.
By letter dated September 4, 2019, T.P. recommended that V be vaccinated. In pertinent part, the letter states that on August 28, 2019 V underwent "her annual wellness exam and [is] found to be in good health. It is in V's best interests to begin immunizations to maintain her well-being; she has no medical contraindications to receiving vaccines" (Petitioner's Exhibit 8). The letter had no impact on the father's position against vaccinations.
The record is abundantly clear that the father, although vaccinated himself (and having received his last vaccination in 2009), has discussed the harms of vaccinations with V, has specifically directed her to object to vaccinations when at the doctor's office, and spoke to her about homeschooling as early as August 18, 2019 (Petitioner's Exhibits #2, #3, and #6; Respondent's Exhibit #1). The mother has not spoken to V about why she has not been vaccinated.
The Court declines to find that the mother acted "unilaterally" by making a "placeholder" appointment for vaccinations. The mother did not bring V to the appointment and has not vaccinated V, although at any point she could have had done so without the father knowing, by bringing V to the Department of Health or another pediatrician. The mother explained, and the Court credits her testimony, that she made the "placeholder" appointment just in case the parties reached an agreement and that she did not intend to vaccinate V without the father's knowledge or consent.
The Court also declines to find that the mother acted "unilaterally" by refusing to go to mediation on the vaccination issue. Rather, the Court finds that the mother's refusal to go to mediation was reasonable as it would have been a fruitless endeavor. The father recommended mediation solely to convince the mother of his position, as made abundantly clear to this Court not only by his testimony, but by the content and tone of his August 18, 2019 e-mail (Petitioner's Exhibit #3), in which he recites a conversation between himself and V about vaccinations and homeschooling; his August 27, 2019 e-mails (Respondent's Exhibit #1), in which he sets forth his argument against vaccinations, stating that he "hope[s] and pray[s]" every day that the amended law gets repealed, and then attempts to convince the mother to consider other education options; and his September 7, 2019 e-mail and the mother's September 9, 2019 e-mail in response (Petitioner's Exhibit #2).
The Court finds that the mother has approached the vaccination issue as "a decision that we make based on what is in the best interest of V." She testified, credibly, that she "felt that V would want us to have arrived at a decision or a court to have arrived at a decision for her to also feel comfortable in that process."
If the mother is given final decision-making authority, she will choose to vaccinate V after first talking to the "pediatrician about what is the best schedule considering that we've been in a process where we have not been able to vaccinate her." The mother also testified that, from her research, the chances of V becoming vaccine injured are "very low, but there's always a chance." The mother believes that V is "generally a healthy child who was not vaccinated and therefore susceptible to getting a number of diseases."
On the other hand, if the father is given final decision-making authority, he will not vaccinate V. He understands that, unvaccinated, V will not be able to attend PS 2** and intends instead to homeschool her or move her to a state where she can attend school unvaccinated (Petitioner's Exhibit #2). His homeschool plan is as follows: bring her to a "resource enter" during the day, such as Brooklyn Apple Academy; then bring her to his office to do on-line curriculum; then bring her to Brooklyn for her after school activities. The father testified that that he would "find a way to do it" himself if the mother is not a part of his homeschool "education plan."
According to the mother, the decision to place V in a resource center with multiple children who are not vaccinated will heighten the risk of her getting a disease. During the course of the trial, without the mother's knowledge or consent and despite this Court's Order not to change V's schooling, the father introduced V to the Brooklyn Apple Academy (a homeschool resource center) by way of going on "field trips" with that resource center; on October 9, 2019 he attended a field trip with her, and on October 16, 2019 he sent her on another field trip by herself.
CONCLUSIONS OF LAW
The Court's overriding priority in a custody proceeding is to determine which resolution will serve the best interests of the child, promoting her welfare, happiness, and optimum development. Eschbach v Eschbach, 56 NY2d 167, 171—172 (1982). A determination of best interests is based upon the totality of the circumstances, including: (1) quality of the home environment; (2) financial status and ability of each parent to provide for the child; (3) each parent's relative fitness, including his or her ability to guide the child and provide for the child's intellectual and emotional development; (4) the love, affection, nurturing given by each parent to the child, and the willingness and ability of each parent to facilitate and encourage a close and optimum relationship between the child and the other parent; (5) past performance of each parent; (6) the willingness and ability of each parent to put the child's needs ahead of his/her own; (7) the alternative that best promotes stability in the child's life; (8) the child's desires; and any other factors deemed relevant, such as the parents' voluntary agreement, and the length of time of the present custody arrangement. Eschbach v Eschbach, supra; Friederwitzer v Friederwitzer, 55 NY2d 89, 93-94 (1982); Batista v Falcon, 148 AD3d 698 (2d Dept 2017); Williams v Bryson, 167 AD3d 1021 (2d Dept 2018).
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 NY2d 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."); Friederwitzer v Friederwitzer, 55 NY2d at 95 ("[n]o agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interests").
As a general, yet fundamental, principle, both parents should be able to meaningfully participate in the child's upbringing; in other words, each parent should have a part in decision-making which is, after all, the essence of parenting. In this regard, there has been a trend toward awarding joint legal custody (or co-parenting) even where "hostility and poor-communication abound." J.R. v M.S., 56 Misc 3d 975, 984 (NY Sup. Court 2017); Prohaszka v Prohaszka, 103 AD3d 617, 618 (2d Dept 2013) ("although it is evident that there is antagonism between the parties, it also is apparent that both parties generally behave appropriately with their children, that they can make parenting decisions together, and that the children are attached to both parents. Under these circumstances, there is a sound and substantial basis in the record for the Supreme Court's finding that the best interests of the children would be served by awarding the parties joint custody."); Elizabeth S. v Edgard N., 150 AD3d 585, 586 (1st Dept 2017) (joint legal custody appropriate despite parties' "acrimonious relationship").
Here, after a review of all the evidence and being in a position to observe the demeanor and credibility of the mother, the father, and the other witnesses, the Court finds that, based on the totality of the circumstances, the preponderance of the evidence supports an award of joint physical and joint legal custody, with final decision-making authority to the mother. This resolution is in best interests of V. Prohaszka v Prohaszka, supra; Batista v Falcon, supra.
At the outset, the Court gives great weight to the parties' voluntary agreement pursuant to which they share joint physical and legal custody of V. The credible proof unequivocally establishes that a continuation of this joint custodial arrangement, which is all V has known for her entire life, is in her best interests. See Elizabeth S v Edgard N., 150 AD3d at 586 (". . . in awarding primary physical custody to the mother, the court appropriately considered that the child had been residing primarily with the mother since he was 10 months old, pursuant to the parties' voluntary arrangement, and was thriving under that arrangement").
The mother and the father presented with equal strengths in many areas. They are each intelligent, educated, involved, and loving parents. The quality of their respective homes and ability to provide financially for V financially is basically on par (40/60). V lives one half of the time with the mother, and one half of the time with the father, and is happy and well- cared for at both homes. V's maternal grandparents are an integral part of her daily life and she loves and is deeply bonded to them.
In addition, the mother and the father demonstrated knowledge of V's developmental needs: they are actively involved in her school conferences and events and encourage extra-curriculars that comport with her interests. The mother, with the father's full knowledge and consent, enrolled V in several after-school activities in her Brooklyn neighborhood, all of which she enjoys. Both parents nurture V and offer her parental guidance; she looks to both for advice. Both parties demonstrated appropriate and equal love and affection for V; there was no proof that either party has a superior emotional bond or provides more nurturing. V loves and is deeply bonded to both of her parents equally.
Moreover, the mother and the father have been able to co-parent with relative success. Despite acrimony and a clear divide as to the vaccination issue, they generally behave appropriately, have set aside their personal differences, and can cooperate with the each other to work together for V. As a result of the parties' joint custodial arrangement, V is a healthy, intelligent, active, and compassionate child. At PS 2** she is a leader, is thriving, and has many friends.
Accordingly, it is unequivocally clear, and this Court so finds, that V's best interests are served by continuing this arrangement and awarding the parties joint physical (equal time as per their present agreement) and joint legal custody. See Prohaszka v Prohaszka, supra; Batista v Falcon, supra; Elizabeth S. v Edgard N., supra.
The credible evidence also establishes, and this Court so finds, that V's best interests are served by awarding the mother final-decision making authority after meaningfully consulting with the father on all issues related to V's health, medical care, education, religion, and general welfare. The record supports this conclusion in two ways: first, the father's conduct around the vaccination issue seriously called into question his ability to put V's best interests ahead of his own, and to ensure stability in her life; and second, there is no real risk that, with final decision-making authority, the mother will prevent the father from meaningful participation in making decisions for V.
The Court recognizes that the father is entitled to object to vaccinations and may base that objection on religious or medical or any other reason. However, as his objection completely fails to take into consideration the mother's concerns and views on the vaccination issue, and has substantially interrupted and interfered with V's education and stability, the only conclusion to be drawn is that he is placing his interests above V's best interests and lacks insight into the importance of stability in her life. Therefore, he is not fit to be the final decision-maker.
Public Health Law §2164, as amended, is presumptively valid. See generally Prince v. Massachusetts, 321 US 158, 166—67 (1944) (statutes requiring immunization against communicable diseases is in the best interest of both children and the general public and is a valid exercise of state police power). The father concedes that V is not entitled to a medical exemption from vaccinations under PHL §2164(8), the undisputed result of which is her exclusion from PS 2** (indeed, all public schools). To date, as a result of the father's anti-vaccination position, V has lost 36 days from school.
Yet, the father's anti-vaccination position is based upon the possible risks of "brain damage, encephalitis" and "seizures," which are the very complications attendant to contracting the measles. See generally, Matter of Christine M., 157 Misc 2d 4, 6—7 (Family Court Kings County 1992) ("Another serious complication of measles infection is encephalitis, an inflammation of the brain. Approximately fifteen percent of patients with measles related encephalitis die and another twenty-five to thirty-five percent have permanent neurological damage. Measles infected children may also develop subacute sclerosing panencephalitis (SSPE) which causes irreversible neurological damage, mental retardation and seizures, and from which there is little chance of recovery."). The father would choose to completely disrupt, even uproot, V's life in order to avoid possible side-effects of vaccinations, which are required for all children who attend public school.
The Court finds that the father has not considered the mother's concerns and viewpoint on vaccinations and feigned agreement to a delayed vaccination schedule. The evidence amply supports the finding that the father never actually intended to vaccinate V; his assurances of delayed vaccination were specifically designed to placate the mother and keep V unvaccinated in accordance with his own personal beliefs. His objection to vaccinations is absolute, non-negotiable, has resulted in a complete disruption of V's education, relationships, and daily life. The father has no intention of doing anything other than advancing his position on this issue. Indeed, during the trial, despite knowing of the mother's vigorous objection to V being placed in a situation with other non-vaccinated children, and despite this Court's Order that the parties not change V's schooling, the father began to "socialize" V at Brooklyn Apple Academy without the mother's knowledge or consent. He also sought an order directing the mother to sign a "Letter of Intent," effectively un-enrolling V from PS 2** so that she could commence homeschooling, as per his plan.
The father is less concerned with V's educational and emotional well-being than for his own beliefs. He persists in refusing to vaccinate V despite the overwhelming evidence that she is thriving in PS 2**, is a leader in her class, has many friends, and that PS 2** is a good school that supports and enhances her educational, emotional, and social development. His plan to homeschool V involves dropping her off to a resource center during the day and then doing lessons with her at his office. His alternative plan is to move V out of New York State — a complete interference with the mother's care and custody and interruption of V's life — so she can remain unvaccinated and attend school.
Moreover, the father has improperly involved V directly in this issue: he has discussed the harms of vaccinations with V, despite being vaccinated himself (most recently in 2009); he has told her to object to vaccinations while at the doctor's office; he has discussed homeschooling with her. The father's lack of insight is further established by, directly in front of V, getting into a confrontation with the mother and Mrs. M-N. outside of T.P.'s offices when he could not wrest the mother's agreement not to vaccinate. The father's hysterical behavior in the face of the mother's refusal to consent to his position demonstrates not only an inability to consider V's best interests, but also a complete disregard of the mother's boundaries.
The record is clear that if the father is given final decision-making authority, he will not vaccinate V and, instead, will uproot her life, disrupting the relationships she has come to rely upon and that have contributed to her development as the intelligent, active, caring, and compassionate child that she is. Consequently, while a fit parent in many other respects, the father lacks willingness and ability to put V's needs ahead of his own beliefs and lacks insight into the importance of stability in her life. In his efforts to advance and protect his own personal beliefs, he has shared V's confidential medical information with strangers (Respondent's Exhibit #1), involved her directly in the dispute, and unilaterally sought to acclimate her to his chosen educational setting.
On the other hand, the preponderance of the credible evidence established that the mother is fit to have final decision-making authority on all matters. The Court recognizes that an award of final decision-making authority to one party carries with it the risk that the final decision-maker will cut the other parent out of the decision-making process completely. The Court finds, however, that there is no real risk that the mother will cut the father out of decision-making for V if she is awarded final decision-making authority. The credible evidence established — indeed, the father admitted — that the mother has meaningfully discussed issues regarding V with the father and "listens, hears, and considers" his position including on the issue of vaccinations. Indeed, the mother believed and relied on the father's express assurances of delayed vaccinations. She did not take unilateral action to vaccinate V, although she could have, and instead sought judicial relief. On the other hand, immediately upon the change in PHL §2164 the father unilaterally — and frantically — took V for blood tests and has taken every action to ensure she is not vaccinated.
This Court finds that if the mother is awarded final decision-making authority, there is no real threat that the father will be marginalized; there is no real threat of a power shift or imbalance in the parties' respective relationship with V. The evidence established that, save for the vaccination issue, the parties have a long history of successfully collaborating in making decisions for V and this Court has no reason to believe that this arrangement will change if the mother has final decision-making authority. Rather, the evidence amply demonstrated the mother's "willingness to keep the father informed of her decision making . . . and to solicit his input as appropriate." Elizabeth S. v Edgard N., 150 AD3d 586. Nor will the father be completely deprived of a meaningful say in V's life. V will continue to live with the father one-half of the time, as she has for virtually her entire life. She loves and trusts him; she seeks his advice on certain things.
Moreover, the mother has a demonstrated history of researching the issues and seeking appropriate advice as well as the father's input before making decisions for V. There is no evidence that the mother made any decisions that were contrary to V's best interests.
Consequently, joint physical custody and joint legal custody with final decision-making authority to the mother is the resolution which serves V's best interests, and will promote her welfare, happiness, and optimum development. Batista v Falcon, 148 AD3d at 699 ("Here, the Supreme Court's determination that the child's best interests would be served by awarding the mother and father joint legal custody with final decision-making authority to the mother has a sound and substantial basis in the record and will not be disturbed."); Prohaszka v Prohaszka, supra.
The father did not file his own custody Petition although he could have done so prior to September 30, 2019, the first day of trial. Accordingly, the Court can only grant the mother's request for relief, or none at all. However, had the father filed his own Petition, which would have involved the same proof as that on the mother's Petition, this Court would have reached the same result. --------
This constitutes the Decision and Order of the Court. Submission of an Order by the parties is not necessary. Dated: December 2, 2019 __________ Hon. Kathleen C. Waterman Judge, Family Court Kings County