B. S. v. A. S.

74 Misc.3d 473

160 N.Y.S.3d 802

B. S., Plaintiff,

v.A. S., Defendant

Index No. XXXXX

Supreme Court, Kings County, New York.

Decided on December 21, 2021

Lee Anav Chung White Kim, Ruger & Richter LLP, By: Aimee L. Richter, Esq., Michelle Spector, Esq., Attorney for Plaintiff, 99 Madison Avenue, 8th Floor, New York, New York 10016

Brady Klein Weissman LLP, By: Margaret Brady, Esq., Matthew G. Goodwin, Esq., Attorney for Defendant, 501 Fifth Avenue, 19th Floor, New York, New York 10017

Brad Nacht, Esq., Attorney for Children, 26 Court Street No. 1805, Brooklyn, New York 11201

Jeffrey S. Sunshine, J.

The parties share join custody of their daughters — 8 and 10 years old — and have diametrically opposed opinions about whether the children should be vaccinated against COVID-19. The mother-defendant filed an emergency application seeking, inter alia , the authority to vaccination the children.

During the growing worldwide Covid-19 pandemic, the divide between the parents has escalated to the point that judicial intervention is necessary.

The Court recognizes the seriousness of the issue and the tenor of the debate; however, the Court must exercise judicial restraint in honoring the prior stipulations entered into by the parties and by the rights of the parents to raise their children. Here, the Court will adhere to these sound legal principles and will not, under the unique facts and circumstances presented, become embroiled in the political-ideological arguments that divides these parties.

In making any determination the Court recognizes that these parties have entered into two (2) stipulations related to custody of their children: any determination by this Court must also recognize the binding nature of such stipulations unless modified by the Court (see Hallock v. State of New York , 64 N.Y.2d 224, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984] ; see also Eichholz v. Panzer-Eichholz , 188 A.D.3d 820, 134 N.Y.S.3d 445 [2 Dept. 2020] ).

PROCEDURAL HISTORY

The parties were married on May 29, 2005. The father commenced an action for divorce on December 9, 2016 and the parties subsequently entered into a stipulation of settlement dated March 20, 2018 which was incorporated but not merged into a judgment of divorce dated June 12, 2018. The parties share joint custody of the two (2) children of the marriage: daughters ages 10 and 8. The mother has a one (1) year old son with her current partner whom she lives with.

On April 9, 2020, a few weeks after a pandemic emergency was declared the mother commenced an action in Family Court, Kings County seeking modification of the parties’ stipulation of Settlement and Judgment of Divorce to require the parties to comply with all state, city and federal social distancing protocols regarding COVID-19 [NYSCEF #23]. The parties resolved that application by entering into a consent stipulation dated April 10, 2020 [the "April 2020 agreement" which was so-ordered. That April 2020 agreement provided, as relevant here, as follows:

"The parties shall comply with all New York State and New York City issued guidelines related to COVID-19 and social distancing for the duration of the crisis [emphasis added]."

On December 7, 2021, the defendant-mother filed a post-judgment emergency application with Part 202.8 notice seeking the following relief:

(a) suspending the Plaintiff's in-person parenting time and restraining the Plaintiff from in-person access with the Children until either the Plaintiff agrees to allow the Children to be vaccinated against COVID-19 or:

(b) The Plaintiff agrees to be PCR tested for COVID-19 weekly, undergoes COVID-19 antigen testing 24 hours prior to any in-person parenting time, and tests negative as set forth in lab-issued results delivered directly to the Defendant via HIPPA authorization by the Plaintiff in favor of the Defendant; and

(c) The Plaintiff agrees to abide by all Centers for Disease Control (CDC) and New York State recommended COVID-19 safety guidelines for unvaccinated individuals at all times for so long as he remains unvaccinated; and

(d) The Plaintiff agrees that he will ensure that he and the Children abide by all CDC and New York State recommended COVID-19 safety guidelines for unvaccinated children at all times the Children are with him including that they remain masked when in the presence of unvaccinated and unmasked individuals; and

(e) The Plaintiff not take the Children to visit or stay overnight in any location where those present are unvaccinated or unmasked.

(f) restraining either party from traveling with the Children internationally including, but not limited to, Sint Maarten, until such time as the Children may be vaccinated against COVID-19; and

Before this Court on an emergency application filed the previously day (g) directing that the Plaintiff immediately pay his 90% share of Congregation Beth Elohim ("CBE Hebrew School") tuition pursuant to the parties’ Settlement 2 Agreement totaling $3,915; and

(h) finding and adjudging the Plaintiff to be in contempt of Court as a result of his willful disobedience of the Judgment of Divorce and punishing the Plaintiff by fine, the issuance of a warrant for the Plaintiff's arrest, imprisonment, or all of the foregoing under Judiciary Law § 756 and § 753 for his non-payment of his 90% share of the Children's Hebrew School Tuition and disobedience of the Order of the Kings County Family Court dated April 10, 2020; and

(i) finding and adjudging the Plaintiff to be in default of the Parties’ Settlement Agreement for his failure to comply with its stipulation that the parties meet twice with their Parent Coordinator when unable to reach consensus on a Major Decision; and

(j) modifying the Plaintiff's and the Defendant's Settlement Agreement which was incorporated but not merged with the Judgment of Divorce entered in Kings County in 2018 to permit the Defendant to have final decision-making authority with respect to Healthcare Decisions for the parties’ Children; and

(k) Pursuant to DRL § 238 and section 122 - 125 of the Settlement Agreement, that the Plaintiff shall pay the Defendant's counsel fees of not less than $25,000 pendente lite for the making of this motion and defending against any opposition or cross-motion and without prejudice to the Defendant's rights to seek additional fees in the modification portion of this proceeding;

(l) for such other and further relief as this Court deems just and proper.

The parties, both represented by counsel in this proceeding, appeared on December 8, 2021. The Court granted the following temporary restraining order language by hand that the parties "shall follow the provisions of the stipulation dated April 10, 2020 in Kings Family Court which was "so ordered" specifically but not limited to the provision that ‘the parties shall comply with all NYS and NYC guidelines related to COVID-19 and social distancing for the duration of the crisis."

The matter was adjourned to Tuesday, December 14, 2021 for the parties to fully brief the application and for the appointment of an attorney for the children. The Court directed the parties to submit the names of three (3) proposed attorneys for children on consent for the Court to consider in making the appointment. The Court appointed by written order dated December 8, 2021, one of the three (3) attorney names the parties proposed on consent: Brad Nacht, Esq.

Plaintiff filed opposition on December 10, 2021. Defendant filed reply on December 13, 2021. The attorney for the children did not file a written affirmation but appeared and represented that he had met (virtually) with his clients and that he was not substituting judgment. He shared his clients’ position on the record during oral argument of the fully briefed application on December 14, 2021.

THE ARGUMENTS

The mother represents that she and her partner are vaccinated and have received boosters. The father does not dispute that he is unvaccinated.

The mother contends that since the COVID vaccine likely diminishes the chance that an individual will experience the worst risks — such as serious illness, hospitalization and death — associated with COVID-19 and its variants the father's refusal to consent to the children receiving the vaccine should be considered an intentional jeopardization of their health, safety and well-being. She further contends that the parties’ prior attempt to navigate the pandemic safety issues related to the children have become untenable as, she alleges, the father has stopped complying with their April 2020 agreement.

The father, who is an attorney, argues that he is "highly educated and ha[s] spent hours researching the vaccine" and that his opposition to vaccinating the children is because "there is no medical information available about the long-term effects of the vaccine" and because the FDA has only approved the vaccine for emergency use under protection of immunity from future legal claims. In support, he cites as example, the medical issues that arose for first responders and workers at the September 11 World Trade site. The father contends that he does not want the children to receive the vaccine when, if they experience side effects, they cannot sue the pharmaceutical producers. The father notes in his affidavit that "simply because a drug or vaccine is approved by the FDA does not mean such drug or vaccine is safe or will not produce horrific side effects or even death." In the same affidavit, the father contends that "[t]his does not mean that as more facts unfold, I will not change my mind." The Court notes that text messages from the father to the mother appear to indicate the father's position that he will "never" agree to vaccinate the children against COVID [NYSCEF #24].

Neither party disputes the texts that they sent to each other are accurate but the father concedes that the texts he sent were send in anger and frustration.

April 2020 So-Ordered Stipulation: Contempt

The mother contends that "[t]his problem first arose in the spring of 2020 at...