NY Dad Fails To Get Custody Due to Mom’s Failure to Provide Visitation during Pandemic
New York child custody case summary involving pandemic visitation.
In the Matter of Nelson UU. v. Carmen V.
The parents in this Sullivan County, New York, case were awarded joint legal custody of their children, born in 2012 and 2017, in 2019. In 2020, the father returned to court alleging that the mother had failed to abide by the parenting schedule, and sought physical custody of the children. The court entered a temporary order requiring the parties to exchange custody at the police station. In May of 2020, the father filed a motion, which included several police reports, that the mother had failed to deliver the children as ordered. The mother claimed that the failures, which occurred between March 6 and May 14, 2020, were due to her fear of the children contracting COVID-19. She pointed to stay-at-home directives, and pointed out that the older child had asthma.
The court recognized the mother’s concerns, but admonished her that she should have sought judicial intervention. The father was granted make-up visitation time, but dismissed the father’s petition for modification of custody.
The father appealed to the New York Appellate Division.
As in most states, including Tennessee, New York requires a parent seeking modification of custody to show a change of circumstances such that a modification would be in the child’s best interest.
In particular, while the father showed the mother’s refusal during the pandemic, his original petition had alleged a change of circumstances in January 2020 and earlier. But the lower court pointed out that he had not shown the mother’s alleged failures to deliver the children with any degree of specificity. It noted that the lower court had made its ruling based upon its assessment of witness credibility, and like Tennessee, New York grants to trial judges great discretion when it comes to witness credibility determinations.
Overall, the Appellate Division agreed that there was insufficient evidence of any willful violation by the mother. Accordingly, it affirmed the lower court’s ruling.
No. 532635 (N.Y.A.D. Feb. 24, 2022).
See original opinion for exact language. Legal citations omitted.
To learn more, see Modifying Custody & Parenting Plans and our video, How is child custody determined in Tennessee?
See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.
