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What is the standard for changing a custody agreement? A.L. v V.T.L. 2022 NY Slip Op 22017


In A.L. v V.T.L., the Family Court, Rockland County, was asked to consider the standard for changing a custody agreement that gave one parent final decision-making authority over health-related decision for the children. Here, the issue that led to the dispute was the mother’s decision to vaccinate their younger child for COVID.

The parties married on January 26, 2008. The have two children together:  A.T.L. born in 2008 and M.T.L. born in 2010.  The parties divorced on May 28, 2015. They signed a Stipulation of Settlement on March 27, 2015 which provide that the parties were to have joint legal custody of the children and that the parties were to jointly consult and agree with each other with respect to the children’s health. It also stated that 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.

On December 30, 2021, the father filed a petition with this court to prevent the mother from taking their younger child, M.T.L., to have a COVID vaccine administered that day. The Court signed the order, granting a temporary restraint, and made the matter returnable on January 3, 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 of the COVID vaccine.

The court had to decide the standard for a changing a custody agreement. Specifically, what does the objecting parent (the father) have to prove, and by what standard, to establish that final decision making should transfer to him or that the Court should order that a decision contrary to the final decision-making parent’s choice should prevail?

The general rule is that the person seeking to modify a custody order must show that a sufficient change in circumstances has occurred since the entry of the last custody order. See Greenberg v. Greenberg, 144 AD3d 625, 629 (2d Dept. 2016). In addition, just because a parent wants the order changed, does not mean that they are automatically entitled to a hearing on the issue.  They must first produce some evidence of a change in circumstances.  See Hillord v. Davis, 123 AD3d 1126 (2d Dept. 2014). Here, the only change of circumstances was that the father changed is position on vaccinations. He was once generally pro-vaccine and is now very hesitant about the COVID vaccine. The court concluded that the change in the Father’s point of view related to vaccines is not sufficient to warrant a hearing on the mother’s status as the final decisionmaker for medical issues.

However, here, the stipulation agreement did not require that the father produce evidence of a change in circumstance before giving him entitlement to a hearing on the issue.  Thus, he is entitled to this hearing.

To prevail in his petition, the court will look at that is in the best interests of the child.  On this issue, the court found in favor of the mother.  The court found that the father did not provide any evidence that showed that it would be in the best interest of the child to change the mother’s final decision-making authority on medical issues. While noting that there has been a lot of misinformation and vitriol on the subject of COVID vaccinations, the court refused to inject its own views on the wisdom of vaccinations for COVID into this proceeding. Instead, the court focused on the mother’s judgement when making medical decisions in general. The father did not claim that the mother showed poor judgement with respect to other medical decisions.  The father supported his position by showing his research on the dangers and lack of necessity of the vaccine.

Furthermore, the father did not have an issue with their older child being vaccinated. It appears that the father’s opinion on vaccination has changed.  The court concluded that the father’s newfound vaccine skepticism is not a basis upon which the Court can rely in determining whether it was in the best interest of the child to change the negotiated arrangement between the parties regarding final medical decision-making.



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