Opinion
V-02893-21/21A
01-24-2022
In the Matter of a Proceeding for Custody/Visitation Under Article 6 of the Family Court Act A.L., Petitioner, v. V.T.L., Respondent.
Pro se petitioner Father: Adam Levine Mother represented by: David Warren, Esq. Child represented by: Christopher Widholm, Esq. Legal Aid Society of Rockland Co. Attorney for the Child
Pro se petitioner Father:
Adam Levine
Mother represented by:
David Warren, Esq.
Child represented by:
Christopher Widholm, Esq.
Legal Aid Society of Rockland Co.
Attorney for the Child
KEITH CORNELL, J.
Before the Court is the petition filed by A.L. (the "Father") seeking to prevent or postpone the administration of a COVID vaccine to his son, M.T.L. (DOB xx/xx/2010). The Father asks the Court to modify the current custody order, which gives final decision-making authority to Respondent V.T.L. (the "Mother"), and to give the authority to him on this one issue. The Mother opposes the application.
Background
The parties married on January 26, 2008. During the marriage, the parties had two children, A.T.L. (DOB xx/xx/2008) and M.T.L. (DOB xx/xx/2010). The parties separated and a final Judgment of Divorce was entered by the Supreme Court on May 28, 2015. The Stipulation of Settlement signed by the parties on March 27, 2015, was incorporated but not merged into the Judgment of Divorce (the "Stipulation"). The Stipulation provides that the parties have joint legal custody of the children. It further states that
The parties shall jointly consult and agree with each other with respect to the children's... health.... It is understood and agreed that the parents shall use their best efforts and good faith at arrive at decisions in the best interest of the children. In the event the parties are unable to agree upon a decision, the Mother shall have final decision making authority, subject to the Father's right to seek court intervention.Id., Article VIII "Custody and Visitation" ¶ 2.
On December 30, 2021, the Father filed a petition with this court by Order to Show Cause seeking to prevent the Mother from taking their younger child, M.T.L., to have a COVID vaccine administered that day. The Court signed the OTSC, granted the temporary restraint, and made the matter returnable on January 3, 2022. The parties appeared without counsel. Each read a statement to the Court. The Court appointed an attorney for the child for M.T.L. and informed the parties that a hearing would be held on January 19, 2022. The Court directed the parties to focus on the issue of medical decision-making generally, rather than attempting to convince the Court about the safety and efficacy, or lack thereof, of the COVID vaccine.
It is undisputed that the older child has already received the covid-19 vaccine with the Father's consent.
On January 17, 2022, two days before the scheduled hearing, counsel filed a notice of appearance on behalf of the Mother. Counsel also submitted a memorandum of law that argued that a hearing was not necessary, as there had not been a substantial change of circumstances. Counsel argued instead that the Father's petition should be dismissed. The memorandum also argued, that if the matter was considered on the merits, the Mother's final decision-making authority should remain intact so that she could have M.T.L. vaccinated, as recommended by various governmental agencies and the child's pediatrician.
On January 19, 2022, both parties appeared. The Father remained pro se. Counsel for the Mother and the Attorney for the Child appeared. Over the Mother's attorney's objection, the Father read a prepared statement to the Court. The Father expressed his love for his son. He detailed his concerns about the COVID vaccine. He advocated for waiting to vaccinate M.T.L. until more information is available about the long-term effects of the vaccine. He suggested that the parties delay vaccination until M.T.L. is 18 and can make his own decision. The Father asked the Court to take judicial notice of the data maintained by VAERS, the Vaccine Adverse Event Reporting System, which is co-managed by the CDC and the FDA. The Father stated that 99.997% of young men of M.T.L.'s age who contract COVID recover from the illness. The Father reported on a conversation that he had with an unnamed 80 year old friend, who strongly advocated against vaccination. The Father pointed out that M.T.L. already contracted COVID and stated that he believed that M.T.L.'s post-illness immunity was sufficient or superior to the protection provided by the vaccine. He questioned the effect of vaccination on any person who has already contracted COVID. He urged the Court to give him decision-making authority so that the Mother did not rush to make an impulsive decision to vaccinate the child.
The Mother's attorney objected to the hearsay statements in the Father's presentation. The Mother argued that the hearing was unnecessary as a matter of law, since the Mother has final decision making and the Father failed to offer any testimony or evidence that would tend to prove that the current legal custody arrangement should be altered for the best interest of the child. The Mother's attorney requested the opportunity to cross-examine the Father on his statement, but the Court denied the request. The Court reserved decision.
Discussion
Here, two distinct issues have been raised. First, when a custody agreement reached on consent grants one parent final decision-making authority, but specifically reserves the right of the other parent to seek court intervention when they object to a decision, what does the objecting parent have to allege to be entitled to a fact hearing? Second, in these same circumstances, what does the objecting parent have to prove, and by what standard, to establish that final decision making should transfer to the objecting parent or that the Court should order that a decision contrary to the final decision-making parent's choice should prevail?
It is an oft repeated maxim that the party seeking to modify a custody or visitation order has the burden of showing that a sufficient change in circumstances has occurred since the entry of the last order to warrant a modification. See Greenberg v. Greenberg, 144 A.D.3d 625, 629 (2d Dept. 2016); Dezil v. Garlick, 114 A.D.3d 773 (2d Dept. 2014); Pignataro v. Davis, 8 A.D.3d 487 (2d Dept. 2004). Further, a party seeking to modify a custody agreement is not automatically entitled to a hearing absent some evidentiary showing of changed circumstances. See Hillord v. Davis, 123 A.D.3d 1126 (2d Dept. 2014) (reversing and finding that petitioner had met standard for evidentiary hearing); Gold v. Gold, 53 A.D.3d 485 (2d Dept. 2008) (same). In this case, the only change of circumstances identified by the Father is his switch from a generally or slightly pro-vaccine point of view to a strong hesitancy specific to the COVID vaccine. Evaluated in the light most favorable, it is not obvious that this change in the Father's point of view alone is sufficient to warrant a hearing on the Mother's status as the final decision maker for medical issues.
On the other hand, the parties' Stipulation specifically granted the Father the right to petition the Court for intervention when "the parties are unable to agree upon a decision." Stipulation, Article VIII "Custody and Visitation" ¶ 2. In general, a contract or agreement should be read to give each section meaning. See Weiss v. Weiss, 52 N.Y.2d 170 (1981) (interpreting residency clause in separation agreement); Zolotar v. NY Life Ins. Co., 172 A.D.2d 27, 30 (1st Dept. 1991) ("A contract should be construed so as to give full meaning and effect to all of its provisions"). The Stipulation does not require the Father to establish that any type of change has occurred to entitle him to petition the Court when he and the Mother disagree, and reading a change of circumstances requirement into the Stipulation would seem to render the negotiated language superfluous. Instead, it appears that the parties contracted away that particular limitation on his ability to petition the Court in situations where they do not agree.
Of course, were the Father to repeatedly petition the Court over every little disagreement, he might be denied continued unfettered access to the Court. See Simpson v. Ptaszynska, 41 A.D.3d 607 (2d Dept. 2007) (affirming denial of petition without hearing and affirming imposition of gatekeeping order against father who engaged in vexatious litigation).
Based on the Stipulation, the Court finds that the Father's allegation of an unresolved disagreement on a medical decision is sufficient for the Court to hold a fact-finding hearing on the issue of final decision-making. See Walter v. Walter, 178 A.D.3d 991, 992-993 (2d Dept 2019) (holding that "the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was to modify the stipulation of custody so as to award him final decision-making authority with respect to the child without a hearing to determine whether an award of final decision-making authority to the plaintiff was in the best interests of the child); M.B. v J.B., 53 Misc.3d 1209 [A], 2016 NY Slip Op 51490[U] at *3-4 (Sup Ct. Kings Co. 2016) (hearing was necessary to determine if father's final decision-making authority on education should be transferred to mother).
Having found that a hearing was appropriate, the Court now considers what the Father must prove to prevail on his petition. The Court's overriding priority is to determine which resolution will serve the best interests of the child. See Eschbach v. Eschbach, 56 N.Y.2d 167, 171-172 (1982). Any determination of best interests is based upon the totality of the circumstances. See id.; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93 (1982). Although the parties' voluntary custody agreement is but one factor to consider, absent extraordinary circumstances, the court should give it great weight. Nehra v. Uhlar, 43 N.Y.2d 242, 251 (1977) ("Priority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement."). Therefore, in this case, the Father must show by a preponderance of the evidence that extraordinary circumstances exist such that it is in the best interest of the child to alter the parties' current agreement, which awards the Mother final decision-making. See L.N. v V.V., 67 Misc.3d 1208 [A], 2019 NY Slip Op 52174[U] at *33 (Fam Ct. Kings Co. 2019) ([B]ased 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.").
The Court finds that the Father failed to provide any evidence that would tend to establish that it would be in the best interest of the child for the Court to alter the Mother's final decision-making authority on medical issues or that any extraordinary circumstances exist that would necessitate altering the parties' negotiated Stipulation. The Father did not claim that the Mother makes poor decisions generally, or that the Mother's judgment on medical issues has been unreliable. The Father did not point to any situations in the past where the Mother made healthcare decisions for either child that later were shown to be wrong. As a pro se litigant, the Court afforded the Father significant leeway in his presentation. See G.S. v B.S., 63 Misc.3d 1202 [A], 2019 NY Slip Op 50326[U] (Sup. Ct. Richmond Co. 2019) (granting self-represented party latitude as to form and substance of her questions and responses). But the Father offered neither evidence nor argument that would tend to prove that the Mother has been anything but a competent decision maker in the past. On the contrary, the Father's entire presentation was focused on his research into the potential ill effects of the COVID vaccine and his specific disagreement with the Mother's decision on this one issue.
As the Mother pointed out in her pre-trial memorandum, and the Father confirmed in his statement, he consented to the vaccination of the older child. He apparently has had a change of heart. But the Father's current vaccine skepticism is not a basis upon which the Court can rely in determining whether it is in the best interest of the child to change the negotiated arrangement between the parties regarding final decision-making.
This Court declines to inject its own views on the wisdom of vaccinations for COVID into this proceeding. Although the level of misinformation, disinformation, and vitriol around this issue is truly astounding, the Court here is only concerned with determining the appropriate mechanism for decision-making in this child's best interest. To that end, the Court must limit its inquiry to the Mother's prior performance as the final decision-maker. There is no evidence that the Mother has been anything but a thoughtful parent who makes choices for the children based on reasonable factors, such as the recommendations of medical professionals. Therefore, the Court finds that the Father failed to establish any reason to modify the Stipulation so as grant him final decision-making on medical issues, or as set out in his petition, "equal" decision-making. See S.D. v R.D., 63 Misc.3d 1234 [A], 2019 NY Slip Op 50864[U] *6 (Sup. Ct. Monroe Co. 2019) ("When all of these events are added together and viewed in the light most favorable to the father, they do not equate with a preponderance of evidence... that justify a change in custody... as enshrined in the prior court orders and the judgment of divorce."). The Court finds that Mother may continue to use her final decision-making authority on medical issues as she sees fit. See Elizabeth B. v Scott B., 189 A.D.3d 1833, 1836 (3d Dept 2020) ("By awarding the father final decision-making authority, the Supreme Court effectively granted him sole legal custody.").
Finally, the Mother submitted a request by letter after the hearing in which she sought to have her legal fees of approximately $5,400 paid by the Father. The Mother pointed to a similar matter, B. S. v A. S., ___ Misc.3d___, 2021 NY Slip Op 21349 (Sup. Ct. Kings Co. 2021), where the father also opposed vaccination. In that case, the mother sought $25,000 in counsel fees, based on an enforcement provision in those parties' Stipulation of Settlement. See id. at *28-29. Though not cited in the letter from the Mother, the instant parties' Stipulation includes a provision regarding defaults in obligations, which can result in the payment of costs, including legal fees, to the non-defaulting party for their efforts to enforce the agreement. See Stipulation, Article XVIII "Default in Obligation." Neither party is in that position in this case.
While the Father did not prevail, the Court cannot find that the petition was completely lacking in basis such that the Father should be sanctioned for bringing the issue before the Court. His concerns are heartfelt, and he filed his OTSC in an effort to protect his child. The Court declines to impose fees on a parent in this situation. See J.F. v D.F., ___Misc.3d___, 2021 NY Slip Op 21327 at *15 (Supreme Co. Monroe Co. 2021) (expressing confusion that the father, "an accomplished scientist and professor" would "oppose a child vaccine authorized by the CDC and universally encouraged by state and local physicians and other health officials," but declining to impose legal fees). Therefore, it is
ORDERED that the Father's petition to modify the Stipulation as to final decision-making is DENIED; and it is further
ORDERED that the temporary restraint on the Mother found in the Order to Show Cause signed on December 30, 2021, which prevented her from having the child vaccinated against COVID, is VACATED; and it is further
ORDERED that the request for an order directing the Father to pay the Mother's legal fees is DENIED.