Deception: Best Interest of the Child

On June 12, 2020, Justice Cooper of the New York County Supreme Court issued a decision in the matter of A.S. v. H.R.

In that matter, which was a COVID-19 related case, Justice Cooper allowed a father who “temporarily” relocated to California with his son to remain there until August. At the same time, the mother had very restrictive supervised visitation rights in New York. In the Decision, Justice Cooper indicated that the father could stay in California until August. Due to COVID-19 and the restrictions the pandemic has imposed, the mother who has restrictive visitation would be prevented from exercising any visitation, as supervisors are not conducting in-person supervision during this time.

What is unusual in that decision is that when the father went for his “visit” to California, he packed all his belongings, which seemed like a permanent relocation and a ploy to use COVID-19 to establish permanent residency there.

“While the Court is hesitant to reward the Plaintiff for his apparent deception and less-than forthright behavior, the Plaintiff’s intention is not the primary factor to be considered. As in all such matters, the child’s best interest is first and foremost” S.A. v R.H., 181 AD3d 520 [1st Dept 2020].”

In this thought-out decision, the Court, while using the litmus test of the best interest of the child, still ruled that the child shall remain in California for the time being even though the father clearly had unclean hands and manipulated a dire situation for his own agenda.

As to the mother’s supervised visitation, most supervisors during this period did not wish to be in personal contact with anyone. Thus, the mother would not be able to exercise her restrictive visitation during this time. Accordingly, the child was allowed to remain in California until August. 

The following are a few recent decisions involving COVID-19 that have brought it to the forefront. Namely, in Jennifer R. v Lauren B. 2020 N.Y. Slip Op 20094 Decided on April 22, 2020, Family Court, Kings County. In that case, one party was trying to use the pandemic as a basis to suspend visitation. This case involved a same-sex parental arrangement; the mother did not want to allow the ex-wife to have visitation in Brooklyn as it was “the hotspot” of COVID-19 as opposed to her location in New Jersey. The Court rightfully indicated that there was no basis for a change of the parenting access schedule, and no proof was submitted to substantiate the claim.

Similarly, in S.V. v. A.J., 020 NY Slip Op 20103 Decided on May 7, 2020, Family Court, Bronx County, the mother tried to use COVID-19 as a way to justify her decision to allow the father video visitation in place of regular visitation. While there was an order of protection, in that case, there was no evidence presented there that would indicate any danger other than what has affected everyone during this pandemic, for the father to have his regular visitation with the child. Again, the Court decision was based on the best interest of the child while weighing health and safety issues, and it included the nurturing and meaningful relationship that occurs as a result of regular visitation.

In all these cases, the parents were attempting to use the COVID-19 situation as a means to manipulate parental access. When it was uncalled for or would not affect the visitation, the Court did not allow for this manipulation. On the other hand, when the child is in a safe place, and the visitation is so limited that it could not even take place, the best interest would be for the child to stay in place until restrictions are lifted. I am sure there will be more cases forthcoming in this area as the pandemic slows down, and restrictions are lifted. One should keep an eye out as these cases progress, and the true intentions of the party are litigated before the Court in the future. How the Court will address this conduct after the pandemic is over is something that remains to be seen.