By Cary J. Mogerman
– The pandemic continues to present new and unprecedented experiences affecting our everyday lives. One such experience is the emerging phenomenon of new family court litigation between parents who cannot agree on the COVID-19 vaccination status of their children. The issue of vaccinating children, until now, had rarely been an issue in child custody litigation. However, the national debate over the seriousness of the COVID-19 pandemic and the safety of the newly developed vaccinations has magnified the discussion on child vaccinations in the family courts.
All over the country, family court judges are now dealing with disputes between parents who wish to vaccinate a child and parents who refuse. While most court judgments of divorced individuals include custody provisions which carefully specify the types of decisions that require joint participation by the parents, it does not necessarily follow that the parents will be able to reach such an agreement. Most divorce judgments contain dispute resolution provisions requiring the parties to either attend mediation or call upon a mutually agreed-upon “parent coordinator” who serves as an arbitrator and decision-maker on decisions that two people, with responsibility for shared decision-making, are unable to reach. However, not every plan contains such provisions, and when they do, some people do not honor them, even if they are extant. Also, not every couple that is separated has reached the point where there is a divorce judgment to rely upon. Thus, the opportunity for trouble is created.
In one recent case, a New York court dealt with a dilemma arising from a change in CDC guidance. In the case, both parents had been vaccinated as had their adolescent daughters. However, their third child was only 11 years old at the time, and the vaccination was not yet approved. However, when the CDC eventually approved vaccination of such a child, one of the parents argued there should be further testing and experience with the vaccine before the 11-year-old child should be vaccinated. The family court decided it is always “the best interest of the child under the totality of circumstances” and ordered the child be vaccinated despite the parent’s objection.
Other dilemmas have shown themselves. Where one parent is vaccinated and one is not, disputes can arise as to whether an unvaccinated child should still be able to visit the unvaccinated parent. Courts in other states have held that the unvaccinated parent should be vaccinated, or alternatively, participate in a reliable testing regimen, to ensure that the child’s potential to contract the coronavirus is minimal while in that parent’s custody. Nevertheless, there are reports of courts declining to punish parents who vaccinated a child over the objection of the other parent, despite the joint decision-making requirement of their custody decree. This growing pattern suggests those courts believe the magnitude of the public health emergency may override the element of contempt known as contumacy: intentional disregard of the court’s prior order.
These child vaccination disputes are so new that the only available information to provide guidance is from trial court orders and anecdotal information from lawyers who have dealt with the disputes informally with judges.. In the State of Kentucky, a bill is pending before the state legislature which would give one parent the right to prevent the coronavirus vaccination of a child and remove the authority of the family court to order it over that parent’s objection. These questions about child vaccinations in child custody cases have become more and more common amid the COVID-19 pandemic, and we have likely not seen the end of these disputes.
This article was originally published in the March 7, 2022 issue of Missouri Lawyers Weekly newspaper and the May/June 2022 issue of St. Louis Lawyer magazine.
Cary J. Mogerman is a partner and the practice group leader of Carmody MacDonald’s family law group and is the national president of the American Academy of Matrimonial Lawyers. He focuses his law practice on complex dissolution of marriage matters, child custody, maintenance and spousal support, and related appellate practice in family law. Cary can be reached at [email protected] or (314) 854-8711.
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