While certainly no two families are alike, for most of us, when we think of holiday festivities, we have a pretty clear picture of what a “normal year” might look like.

But as the dystopian 2020 comes to a close, the state is putting the cap on family gatherings at 10 people. We’re forced to part with traditions and make tough decisions about who we can safely see this year.

For “two house” families, the layers of decisions will become even more difficult to make.

In the world of family law, the “best interests of the child” is held as the gold standard, which usually entails fostering a relationship with both parents. Coming to an agreement that satisfies this goal certainly requires some extra planning during the holidays.

Whatever the agreed-upon plans may be this year, it will largely be on parents to follow New York State guidelines. The State Sheriffs’ Association has already discussed the potential Constitutional question surrounding enforcing the governor’s limit on family gatherings. As everything else this year, these legal issues are largely unprecedented — there is no clear answer.

Courts have been reluctant to interfere with family visitation rights, even during the pandemic. Matter of S.V. v. A.J.,[1] a case from the Bronx County Family Court, has been one of the few cases offering guidance to how courts might address visitation during COVID-19. The court determined that “in times of crisis children need regular contact with both parents more than ever to provide love, comfort, stability and guidance… Our lives may be on hold in many respects, but vital family relationships cannot be placed on hold indefinitely without serious risk of harm.”

Ultimately, the court decided that a child’s right to maintain a relationship with both parents outweighed the risks of the child spending time with two separate families during COVID-19.

Because we have never experienced a holiday season like this before, Family Courts may soon face a question of first impression: how will New York’s restrictions on family gatherings impact  each parent’s ability to be with their children?  It is easy to imagine a circumstance where one parent would like to have his or her child attend a holiday gathering exceeding the governor’s 10-person cap, while the other parent objects — which then brings preemption issues. If the sheriffs refuse to enforce the restrictions, and its constitutionality is questioned, how will a Family Court handle the predicament?

For split families who may already experience difficulties navigating the holidays — this year will present more unanswered questions.

Despite these uncertainties, there are a few things that remain clear: proceeding with caution is crucial. Respecting the Governor’s mandates will help to ensure the safety and security of our families and our communities, as well as keep you in good stead in Court.  Parents should put aside “winning” and work together to decide if  exposing your child to 20+ people, and all their contacts, is in that child’s best interests.

[1] 68 Misc. 3d 330

 

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