DECISION & ORDER AFTER ORAL APPLICATION FOR VIRTUAL TRIAL Kevin M. (hereinafter “Mr. M.”) is the maternal grandfather of Trevor C. (hereinafter “Trevor”) and Sabrina C. (hereinafter “Sabrina”) (hereinafter collectively “subject children”). Alexander C. (hereinafter “Mr. C.”) is the children’s biological father. By order of this Court, dated December 6, 2019, Mr. C. is directed to pay child support to Mr. M. On January 3, 2020, Mr. M. filed a violation petition against Mr. C. seeking enforcement of that order with a finding that Mr. C. has willfully failed to pay child support as ordered. Despite efforts to settle the case, the matter could not be resolved. Thus, the matter was scheduled for a trial on Mr. M.’s petition. Due to the global COVID-19 pandemic, the trial could not be heard on its scheduled court date. On May 11, 2020, Mr. C. filed a downward modification petition, alleging that the Coronavirus had decreased his ability to earn income by 100 percent. On August 6, 2020, a virtual conference in the matter was held. Mr. M. was present with retained counsel, Susan Mintz, Esq. (hereinafter “Ms. Mintz”). Mr. C. was present with retained counsel, Lindsay Patrick Henry, Esq. (hereinafter “Mr. Henry”). On that date, the Court sought to schedule a combined trial as the matters are inextricably intertwined. Ms. Mintz told the Court that she is ready, willing and able to try the cases, but in light of the Coronavirus, she would not appear in person to do so. She made an application for a virtual trial. Mr. Henry objected, claiming that a virtual trial would prejudice his client. These are unprecedented times. There is much uncertainty as it relates to COVID-19 — strength of the virus, ability for the virus to morph into other strains, treatment and cures, and its impact upon individuals’ physical, emotional, psychological and social well-being. As such, businesses, governments, and the public have had to improvise and adapt in all aspects of daily life. To that end, on March 17, 2020, the New York State court system limited its court operations, except for emergency matters. Since then, court operations have been evolving in compliance with New York State Governor Andrew Cuomo’s orders. The expansion process has been fairly frequent. At present, the Nassau County Courts are permitted to schedule both in-person appearances and virtual appearances. Although there has been strict conformity with cleansing and disinfecting rules as well as social distancing guidelines within the Nassau County Courts, persons who are apprehensive about coming to court, grounded in fear of contracting the virus, can not be compel to be present. Upon application by any of the parties for a virtual trial, and based upon the circumstances presented, the assigned judge may order a trial to proceed in that fashion. Virtual trials are not a new undertaking in child support matters. Under the Uniform Interstate Family Support Act (hereinafter “UIFSA”),1 out of state parties are able to bring child support matters against parties who reside in New York. To alleviate the high cost of litigating between states when monies are being sought for the benefit of children, the statute does not require a petitioner’s physical appearance during any of the proceedings. See N.Y. FAM. CT. ACT §580-316(a) (McKinney’s 2020). The statute dictates that a court shall permit a UIFSA party or witness to be deposed or to testify by telephone, audio-visual means, or other electronic means at a designated family court or other location. See N.Y. FAM. CT. ACT §580-316(f) (McKinney’s 2020). Although the rules of evidence apply in child support matters, UIFSA provides that copies of documents referred to by a virtual party or witness are acceptable in lieu of originals. See N.Y. FAM. CT. ACT §580-316(e) (McKinney’s 2020). UIFSA proceedings include trials of enforcement matters where a willful finding is sought and a party’s liberty is at stake. Although there are challenges with trying a case in such a manner, UIFSA trials have been routinely held this way without issue. Likewise, in other child support matters, a Court may permit a party or witness to be deposed or to testify by telephone, audio-visual means, or other electronic means at a designated family court or other location when: (1) that party or witness resides in a county other than where the case is pending, or; (2) that party or witness is incarcerated and is expected to be incarcerated on the deposition or trial date, and is not expected to be released within a reasonable time after the scheduled deposition or trial date, or; (3) the Court finds that being deposed or testifying where the matter is pending would cause undue hardship to that party or witness. See e.g. N.Y. FAM. CT. ACT §§433(c), 531-a(a) (McKinney’s 2020). In such instances, copies of documents referred to by a virtual party or witness may not be excluded from evidence based upon a “means of transmission” objection. N.Y. FAM. CT. ACT §§433(d), 531-a(b) (McKinney’s 2020). Although this practice occurs less frequently, such trials are also held without issue. Mr. Henry maintained that his client would be prejudiced by a virtual trial, but he was unable to point to any actual prejudice. He merely stated that such a trial was “not as fair” as an in-person trial and would have “deleterious effects” for his client without citing specific, plausible reasons why. In light of current child support law and under the circumstances presented, Mr. Henry’s argument is unpersuasive. Notwithstanding, procedural due process requires notice and an opportunity to be heard. See e.g. County of Chemung v. Shah, 28 NY.3d 244, 264 (2016) (“It is well established that procedural due process guarantees notice and an opportunity to be heard.”); Tyk v. N.Y. Education Dep’t, 19 A.D.3d 427, 429 (2d Dep’t 2005) (finding appropriate statutory procedure utilized, affording notice and an opportunity to be heard). Mr. C. received notice of the proceedings when he was served with a copy of Mr. M.’s summons and petition. He will be afforded a meaningful opportunity during a factfinding hearing to present his downward modification case and to defend himself against Mr. M.’s allegations that he has willfully failed to pay child support in a timely and consistent fashion. Should Mr. C. disagree with the Court’s decision after trial, he will be able to appeal this Court’s determination. Finally, the Court implements the following additional procedural protections: The parties shall exchange compulsory financial disclosure with each other, with a copy to the Court, by no later than September 16, 2020. The parties shall exchange witness lists and exhibits lists with each other, with a copy to the Court, by no later than September 16, 2020. The parties and counsel shall establish Skype for Business accounts and appear by voice and video during the trial; the Court’s virtual link will be provided to the parties and counsel. The parties shall pre-mark and exchange all exhibits with each other, with a copy to the Court, by no later than October 1, 2020. In light of the ever-changing Coronavirus information as it relates to symptoms and risks and this Court’s inability to predict when the court system will return to normal in-person operations, Ms. Mintz’s2 application for a virtual trial is hereby granted. The Court finds no prejudice in proceeding to a virtual trial. See e.g. A.S. v. N.S., 2020 N.Y. Slip Op. 20161 (New York Cty. Sup. Ct., July 1, 2020). The Court also finds that delay of the enforcement petition does not serve the best interests of the children. See e.g. 22 NYCRR §205.43 (McKinney’s 2020); see also N.Y. FAM. CT. ACT §454 et al. (McKinney’s 2020). Based upon the foregoing, it is hereby: ADJUDGED, that in light of the COVID-19 pandemic, and Ms. Mintz’s application for a virtual trial, with certain protective procedures in place, a virtual trial will not prejudice Mr. C.; and it is therefore, ORDERED that given the COVID-19 pandemic, New York State Governor Andrew Cuomo’s current orders and the New York State Office of Court Administration’s current protocols, a trial in this matter will be held by Skype for Business on October 26, 2020 from 2:30 P.M. — 4:30 P.M. In preparation for such virtual trial, the parties are directed as follows: (1) to exchange compulsory financial disclosure with each other, with a copy to the Court, by no later than September 16, 2020; (2) to exchange witness lists and exhibits lists with each other, with a copy to the Court, by no later than September 16, 2020; (3) to establish Skype for Business accounts. All parties and counsel must appear by voice and video. The Court’s virtual link will be provided to the parties and counsel; and, (4) to pre-mark and exchange all exhibits with each other, with a copy to the Court, by no later than October 1, 2020. This constitutes the decision, opinion and order of the Court. Dated: August 17, 2020
