Opinion
306655/2011
06-05-2020
S.A., Plaintiff, v. R.H., Defendant.
Robert Z. Dobrish, Esq., Dobrish, Michaels, Gross, LLP, 757 Third Avenue, 18th Floor, New York, NY 10017, for Plaintiff. Elayne Kesselman, Esq., 165 W. 91st Street, New York, NY 10024, For the Child, Philip Katz, Esq., Fink & Katz, 299 Broadway, Suite 1803, New York, NY 10007, for Defendant.
Robert Z. Dobrish, Esq., Dobrish, Michaels, Gross, LLP, 757 Third Avenue, 18th Floor, New York, NY 10017, for Plaintiff.
Elayne Kesselman, Esq., 165 W. 91st Street, New York, NY 10024, For the Child, Philip Katz, Esq., Fink & Katz, 299 Broadway, Suite 1803, New York, NY 10007, for Defendant.
Matthew F. Cooper, J.
Following a custody trial in this high-conflict, almost decade old divorce case, the court awarded full custody of the parties' child to the plaintiff-father and granted the defendant-mother supervised access. The decision was recently affirmed by the Appellate Division in S.A. v. R.H. , 181 AD3d 520 [1st Dept 2020].
Already pending before the court is a motion by plaintiff to relocate permanently with the child to California and a motion by defendant to modify the custody and access order. In connection with these applications, the court appointed a forensic psychiatrist to conduct a forensic evaluation. That evaluation has yet to be completed.
By an order dated March 24, 2020, the court granted plaintiff permission to travel with the child to California on a temporary basis so that the child could visit with his paternal grandparents and observe the Passover holiday. In light of the COVID-19 pandemic and concerns of exposure to the virus and domestic travel, the order directed plaintiff to take certain precautions, including the use of a private airplane, and to return the child to New Jersey on or before April 12, 2020, with the possibility of an extension of the temporary relocation upon a "showing of good cause."
The court subsequently issued two additional orders: 1) an order dated April 10, 2020, extending the return date to May 4, 2020; and 2) an order dated May 1, 2020, permitting plaintiff to make a motion, no later than May 7, 2020, to extend the child's time in California. On May 6, 2020, plaintiff, by Order to Show Cause, moved to further extend the time during which the child could remain in California. Plaintiff's motion is supported by the Attorney for the Child but vigorously opposed by defendant. At this time, the child remains in California.
The Attorney for the Child submitted an Affidavit in Support of plaintiff's Order to Show Cause on May 11, 2020. It is his contention, amongst others, that defendant's supervised access was already very limited and that returning the child to the Tri-state area would expose the child to unnecessary risks.
It is well-settled that absent exigent circumstances "modification of custody or visitation, even on a temporary basis, requires a hearing, absent a showing of an emergency" ( Shoshanah B. v. Lela G. , 140 A.D3d 603, 603 [1st Dept 2016] ). Here, a hearing was held via telephonic conference on May 13, 2020. Counsel for both parties as well as the Attorney for the Child were present on the call and took the opportunity to fully argue their respective positions.
Notably, there are numerous exigent circumstances present, some of which are all too common to the COVID-19 medical emergency and others that are more unique to this case. Primarily, the Tri-state area remains the epicenter of the nation's COVID-19 crisis while California remains less affected. Moreover, the New York City and New Jersey stay-at-home orders have rendered it impossible for defendant to exercise her limited access because the supervisor assigned to the case has not been able or willing to expose herself to the possibility of contracting the virus.
Conversely, the court is cognizant of the fact that plaintiff packed up most of the child's belongings when he initially traveled to California. This, coupled with other facts about plaintiff' conduct, suggest that it was never his intention to return with the child to where he now lives in New Jersey but, instead, that he was exploiting the current COVID-19 situation and using the temporary order as a guise under which to accomplish his desire for permanent relocation.
While the court is hesitant to reward plaintiff for his apparent deception and less than forthright behavior, plaintiff's intention is not the primary factor to be considered. As in all such matters, it is the child's best interests that come first and foremost ( Eschbach v. Eschbach , 56 NY2d 167 [1982] ; Matter of James Joseph M. v Rosana R. , 32 AD3d 725 [1st Dept 2006] ; S.A. v. R.H ., 181 AD3d at 520 ).
In weighing the risks against the benefits of requiring plaintiff to return with the child to New Jersey, the court must conclude, on this particular set of facts, that protecting the child's health outweighs any concerns about any possible interference with defendant's access with the child. Considering that defendant's minimal, supervised visitation is currently impracticable, with the supervisor being unable to conduct face-to-face parental access sessions, it cannot be said that defendant's access is being impeded by the child's continued presence in California. This is especially so inasmuch as defendant is having almost daily virtual parental access while the child remains in California. If the child were to return to New Jersey now, defendant's access under current circumstances would continue to be virtual.
The good news concerning the COVID-19 health emergency is that situation has improved in the Tri-state region to the point that restrictions are now beginning to be lifted. It is, of course, not the place of a court to evaluate the level of danger posed by a virus; that is best done by the executive branch guided by expert medical advice. The court, in turn, will be guided by those executive decisions. The governors of both New York and New Jersey either have or are poised to issue directives that will greatly ease the restrictions placed on travel and activities. The court will therefore assume that by July 8, 2020, which is one full month from the date of this decision, neither New York City nor New Jersey will be subject to the type of restrictive orders that have impacted every aspect of daily life. Under this scenario, the reduction of risk will be sufficiently reduced so as to require plaintiff to return the child to New Jersey and thereby allow defendant to resume in-person supervised access in New York City.
In accordance with the foregoing, it is hereby
ORDERED , that plaintiff's motion is granted solely to the extent of permitting him to remain with the child no later than July 8, 2020, and with the express directive that he return the child to his home in New Jersey by that date; and it is further
ORDERED , all relief sought but which has not been addressed in this decision is denied.
This constitutes the decision and order of the court.