As the Covid-19 pandemic has grown and intensified across the globe, literally touching every corner of the earth, so has the debate over how to counter its spread. We, as a global community, have spent the last few years debating and discussing when to vaccinate, how many vaccinations are necessary, at what age people should be vaccinated, should children be vaccinated, what are the short and long-term risks of vaccination versus non-vaccination, when to mask, when to socially distance, what social distance is required, etc., etc., etc.. This topic has dominated the news, the internet, our social discourse and daily conversations. Is it any wonder that this debate has now landed in the courts across the United States and beyond?
This surge in Covid-19 related litigation is especially dramatic in the context of Divorce and Family Law cases dealing with the custody and visitation of children between warring parents. Can a family law court order a parent or child be vaccinated? Can a court order a change in custody based upon the vaccination or non-vaccination status of a parent. Can the court suspend a parent’s visitation with the child unless and until he or she is vaccinated? How does a Judge (a person trained in the field of law not medicine) “follow the science” when it is ever changing and constantly debated? Is expert testimony required? The questions are as endless as the cases which have presented such issues.
As one reviews the landscape of court decisions from across the country and beyond one common principle is discernible. In virtually every case presented the court has lined up in favor of vaccination. What changes from case to case is the context within which the court makes its determination.
Cases approving the vaccination of the child
For example, one broad category is those cases where a judge is asked to order the child’s Covid-19 vaccination. In upstate New York a judge ruled in favor of a mother’s application to vaccinate her 11 year old daughter, in the face of opposition by the father, a science professor at Rochester Institute of Technology , directing that the child to be vaccinated “immediately.”
Similarly, in Alberta, Canada the court ruled that the mother was authorized to vaccinate her 10 and 12 year old children over the father’s strong anti-vaxx objections. Indeed, the court went even further. The court also directed that the father was no longer permitted to discuss COVID-19 vaccines, or the pandemic in general, with his children, nor was he permitted to supply them with social media or other information about the virus.
A Quebec Superior Court Justice ruled that a 12-year boy in the Montreal suburb of Longueuil had the right to get his two doses of the vaccine, despite opposition from his father, who, according to the court, failed to present any evidence in court that the shots would be dangerous.
Cases where the Court directs the parent to be vaccinated
While there have been a number of cases where the court has directed the child to be vaccinated, the question of whether the judge has the authority to direct a parent be vaccinated is far from clear. Even the judge in the most pro-vaxx decision handed down so far questioned his legal right to make such a determination, saying "requiring an adult to be vaccinated... would stretch the authority of a matrimonial court to unprecedented lengths."
However, some judges have actually done so. Rebecca Firlit told The Chicago Tribune that she and her ex-husband, Matthew Duiven, were in a child support hearing when Judge James Shapiro asked if she’d been vaccinated. Firlit said she had not, because other vaccines made her sick and a doctor recommended that she not get vaccinated. Judge Shapiro then immediately suspended her parenting time with her 11-year-old son until she provided proof of vaccination. He later vacated his decision not because he believed himself to be wrong but because judges are not allowed to summarily change custody without a hearing.
Similarly, constitutional concerns did not stop a judge in Liberty County, Texas, from making such a direction. In the case the Judge’s handwritten order dated 5/10/21 says "both parents are to get vaccinated for COVID by end of this week." The father failed to show for his vaccination by the deadline but was still allowed to see the children even while not vaccinated. It appears that the court’s order was never enforced
Cases where visitation is suspended until a parent is vaccinated or tested
Apart from directing that a parent be vaccinated – as indicated above a direction of dubious validity- the Court has presented the unvaccinated parent with an alternate Hobsian choice - vaccinate or have your access to the children suspended or altered.
In New York a judge suspended a father's visitation until he was vaccinated or was tested on a regular basis timed to the proposed visitation with the 3 year old child. While the father is appealing the order he is seeing his children based upon a regular testing protocol.
Similarly, a judge in Los Angeles, California ordered a father to either get vaccinated or provide a statement from a medical doctor explaining why he couldn't. His access with the children was suspended until he complied with these directives.
In New Brunswick, Canada a divorced father has lost his right to see his three children in person after refusing to get the COVID vaccine particularly where one of the children, age 10, was immunocompromised. Nevertheless, the Court’s ban directed him to stay away from all three of his children.
Cases where a change of custody is requested based upon a parent's vaccination status
Finally, the court has the authority to change custody from one parent to another based upon the vaccination status of the parties. For example, in a New York case from Rockland County the Judge turned aside a father's request for a change of custody based upon the mother's expressed intent to vaccinate the children, ages 12 and 14, finding that there was insufficient evidence to upset the mother's previously exercised final decision-making authority.
In another New York case, B.S. v. A.S. the court found that the parents' disagreement over the vaccination of their children was sufficient to trigger a hearing to change the parties' joint custody arrangement to sole custody. Wisely, the parties elected to settle their case before the hearing.
Cases where parents exercise self-help
Unfortunately, there are times when parents take the law into their own hands. In one Canadian case the court overruled the father’s objections to vaccination and directed the mother to vaccinate the child. In response the father fled with his daughter, age 11. The Royal Canadian Mounted Police issued a warrant for his arrest when the father failed to return the child following a scheduled visit. The father and child are still missing.
Finally, there have been cases when a parent simply brings the child to a doctor for a vaccination without the other parent‘s knowledge or consent. Several court decisions in New York have held that a parent who does so cannot be held in contempt of court or sanctioned since the other parent cannot show that they were prejudiced by this act.
Conclusion
With the recent spike in serious Covid-19 cases among children, largely attributable to the omicron variant, there will be an explosion of cases dealing with this issue. Not only will judges be sorely tested to decide these difficult, emotional yet highly significant cases but they will also be tasked with the responsibility of sorting out the parents who have legitimate good-faith differences about this subject from the parents who are misusing or manufacturing an issue to advance their own personal agendas.
