Case Notes

Acting Richmond County NY Supreme Court Justice Catherine M. DiDomenico addressed first the notice complaint, in which the husband's attorney claimed that she should have been given at least 24 hours' notice prior to a hearing on the matter. Judge DiDomenico observed that a plain reading of 22 NYCRR 202.7(f) reveals no requirement of at least 24 hours' notice. “Given the exigent circumstances of this case,” she said, “particularly the uncertainty of Wife's advancing labor,” notice by fax to the husband's lawyer was adequate. Additionally, stated the court, the husband was aware that his wife did not want him in the delivery room, so “his claims to have been 'sandbagged' by this application are not persuasive.”

As to the motion itself, the court looked to Chanko v. American Broadcasting Cos. Inc., 27 NY3d 46, (2016), for confirmation that medical patients have the right to privacy in their medical treatment. “This right includes the sole decision to consent to non-medical spectators, if any, who might seek access to her medical information or more intrusively, to be physically present during the rendering of medical care,” stated the court. See, e.g., Suchorzepka v. Mukhtarzad, 103 AD3d 878 (2d Dept. 2013). Judge DiDomenico also noted that, under the Federal Health Insurance Portability and Accountability Act (HIPAA) (42 USC § 1320d et seq.), the husband would not be entitled to even view his wife's medical records without her permission; so, certainly, allowing him to witness her actual medical care should not be allowed. Because the right to medical care and the right to privacy attendant to it are rights belonging solely to the wife in this instance, the court found that the husband had no standing to object to her exercising them as she chose.

“Further,” the court concluded, “if the Court were to grant Husband access to the delivery room against Wife's wishes, it would create a potentially unsafe and volatile situation. Husband's unwelcomed presence could cause additional stress on Wife and potentially disrupt medical personnel attempting to provide care to both mother and baby during this serious and vulnerable time. Moreover, such a ruling would suggest that Wife's rights to make medical decisions about her own body are interpreted in some way to be equal to, or subordinate to, the demands of Husband, which they clearly are not.”

Divorcing Husband Cannot Witness Child's Birth

In what appears to be a case of first impression in New York, the court overseeing a couple's divorce has granted the wife's motion seeking to bar her husband from the delivery room when she gives birth to their child. B.T. v. E.T., 2016 N.Y. Misc. LEXIS 3186; 2016 NY Slip Op 26280 (9/2/16).

The parties commenced a divorce action in March 2016. The wife then filed an Order to Show Cause on Sept. 16, seeking an order enjoining the husband from being present in the delivery room when she gives birth to the parties' child. The husband not only objected to this proposition, but also complained that the opposing attorney failed to give proper notice of the wife's emergency application, as required by 22 New York Codes, Rules and Regulations (NYCRR) 202.7(f).

Acting Richmond County NY Supreme Court Justice Catherine M. DiDomenico addressed first the notice complaint, in which the husband's attorney claimed that she should have been given at least 24 hours' notice prior to a hearing on the matter. Judge DiDomenico observed that a plain reading of 22 NYCRR 202.7(f) reveals no requirement of at least 24 hours' notice. “Given the exigent circumstances of this case,” she said, “particularly the uncertainty of Wife's advancing labor,” notice by fax to the husband's lawyer was adequate. Additionally, stated the court, the husband was aware that his wife did not want him in the delivery room, so “his claims to have been 'sandbagged' by this application are not persuasive.”

As to the motion itself, the court looked to Chanko v. American Broadcasting Cos. Inc. , 27 NY3d 46, (2016), for confirmation that medical patients have the right to privacy in their medical treatment. “This right includes the sole decision to consent to non-medical spectators, if any, who might seek access to her medical information or more intrusively, to be physically present during the rendering of medical care,” stated the court. See , e.g. , Suchorzepka v. Mukhtarzad , 103 AD3d 878 (2d Dept. 2013). Judge DiDomenico also noted that, under the Federal Health Insurance Portability and Accountability Act (HIPAA) (42 USC § 1320d et seq.), the husband would not be entitled to even view his wife's medical records without her permission; so, certainly, allowing him to witness her actual medical care should not be allowed. Because the right to medical care and the right to privacy attendant to it are rights belonging solely to the wife in this instance, the court found that the husband had no standing to object to her exercising them as she chose.

“Further,” the court concluded, “if the Court were to grant Husband access to the delivery room against Wife's wishes, it would create a potentially unsafe and volatile situation. Husband's unwelcomed presence could cause additional stress on Wife and potentially disrupt medical personnel attempting to provide care to both mother and baby during this serious and vulnerable time. Moreover, such a ruling would suggest that Wife's rights to make medical decisions about her own body are interpreted in some way to be equal to, or subordinate to, the demands of Husband, which they clearly are not.”