As I anticipated in a prior blog about general vaccinations, the hot topic is now how a COVID-19 vaccination status impacts parental rights.  I recently gave a lecture about family law topics and COVID-19, during which I noted how important it is to check the news every day because new cases are popping up left and right, state to state, about these issues.  As time goes on and the cases hit the appellate level, and possibly higher, we can expect some new law.

As reported in the NY Post (always fun) and elsewhere, a New York City judge suspended a father’s parenting time with the parties’ three year old child because he is unvaccinated.  The father has two options to resume his time: get vaccinated or submit to weekly COVID-19 tests.  To quote the court:

Here, in-person parental access by defendant is not in the child’s best interests, and there are exceptional circumstances that support its suspension…

…The dangers of voluntarily remaining unvaccinated during access with a child while the COVID-19 virus remains a threat to children’s health and safety cannot be understated.

The father in this case argued that he was previously infected with COVID-19 and, thus, has immunities.  His counsel said that the father is not a conspiracy theorist and, instead, has concerns about the vaccine and previously had a bad reaction the flu vaccine.

Of note, this has been a contentious post-judgment custody case since the parties’ divorce in 2019.  The father’s parenting time was already limited to supervised time due to substance abuse issues, with the mother as the supervisor.  He resides in Long Island the mother lives in NYC with their child.

The father’s attorney made the following statement:

This judge must feel that 80 million Americans who aren’t vaccinated are placing their children at imminent risk of harm and, therefore, the courts should intervene and remove those children from their parent.

This NYC case is not the first with its kind and I doubt it will be the last. In late-summer 2021, a Court in Illinois suspended parenting time visits for an unvaccinated parent in a case where the parties were in court on child support issues and, simply put, no issue related to custody.  The decision was of course reversed as the court did not have the jurisdictional authority to issue that sua sponte order.

Also, while not vaccine=related, in July 2021, the Maryland Court of Special Appeals affirmed a decision denying the father 18 days of make-up parenting time that he requested after the child was withheld earlier in the COVID-19 pandemic because the mother claimed to fear the child was at risk due to underlying conditions.  At the time, the mother offered the father the make-up parenting time, but the father had ceased negotiations and litigated the issue (in a very litigious post-judgment matter that had been ongoing for years).  By the time this issue was before the court, the father had already resumed his regular parenting time.  The court found that it was not required to provide the make-up parenting time because the statute included the word “may” with respect to ordering make-up parenting time when a child is withheld, and granting 18 straight days would interrupt the child’s routine now that regular parenting time had resumed.  Thus, the requested make-up time was not in the child’s best interests – they key term that doesn’t change because of the pandemic but rather is evaluated in light of the pandemic in all of these cases now and to come.

The NYC and Illinois cases have unique characteristics in the sense that the father’s time was already limited in the NYC case and the Illinois case was immediately reversed.  Both the NYC and MD cases are litigious custody matters that have gone on for years.  But, all of the cases raise questions, including:

• What will happen when there is a dispute over parental vaccination and physical custody is an issue in a pre-judgment case, i.e.: before divorce.
• How, if it all, do break through cases impact the result, i.e.: you can still get COVID-19 even with a vaccine?  With the news on break through cases, comes the news that the symptoms in most of those cases are less severe than in non-vaccinated COVID-19 cases, so does the break through case really change the conversation?
• Are medical experts the next “big business”? How can the court make decisions about the vaccination/non-vaccination issues without a medical expert opining, but for taking judicial notice of the benefits of the vaccine or enforcement in states that require vaccinations in certain scenarios.
• In that regard, how would a court’s decision in the NYC/blue state case be different in a more red state?
• Also, how is the COVID-19 different from other vaccines that are required for public school education and so on, absent an exemption such as religion?
• Forget parental disputes over parenting time with unvaccinated parents, what about medical decision making authority when parents dispute over a child getting vaccinated… now a parent wins that relief to mandate the vaccination of their child and to have sole authority to get it accomplished… but that means at least right now that the child is 12 or older, so how does a parent force the child to get the vaccine if perhaps that child is influenced by the parent who doesn’t want it?  Needless to say, in this law-school-hypothetical blog post, there are many questions to come and, presumably, cases that will address this issues.

I can go on and on, but I will save you from my rambling.  One tip to offer, though, is to include COVID-19 expectations in parenting plans where you are able, i.e.: does an unvaccinated parent have to be masked, are kids expected to be masked in certain locations or even in the noncustodial parent’s home depending on who else resides there, are children going to be vaccinated when they are of age, and so on.  Like anything else, better to define it now than to figure later when an agreement is silent.

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