Custody in the Time of Covid-19 Vaccination

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By Anabelle Nietupski, Web Editor

Suddenly we are living in a time where vaccination status is a political, religious, social, and moral statement. Thus, this status has begun to reach into every aspect of modern life, including the law. Looking to the area of family law, the conversion of child custody negotiations and parental COVID-19 vaccination status had begun to create ideological roadblocks for uniform adjudication. Lindsay Heller, from Fox Rothschild LLP, suggests that it is vitally important “to check the news every day because new cases are popping up left and right, state to state, about these issues.”[1]

Prior to the COVID-19 pandemic, vaccines were “almost entirely non-controversial.”[2] Children were subject to a battery of vaccines to attend public schools, with state regulations allowing for medical, religious, and philosophical exceptions on rare occasions.[3] The scarcity of these claims results in an absence of litigation to guide the courts through COVID-19 vaccination issues.  

In Prince v. Massachusetts, the Court drew a stark line between acceptable interpretation of parental freedom, stating “parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children.”[4] This principle, parens patriae, instructs that “religious and parental rights must be subordinated to society’s rights to keep kids safe.”[5] While this principle seems clear, there are some roadblocks preventing courts from expressly ruling on issues of parental COVID-19 vaccinations. For example, “the public health enactment is not valid if it does not effectively solve or ameliorate the health condition involved.” [emphasis added][6] Thus, “if a vaccinated mother can still transmit COVID-19,” despite her inoculation, does the court even have power to order the other parent be inoculated to visit their child?[7]

Children are susceptible to the COVID-19 virus and may even develop “a potentially severe and dangerous complication.”[8] The complication, called “multisystem inflammatory syndrome in children (MIS-C),” may lead to life-threatening inflammation in different body parts, including the heart, “lungs, kidneys, brain, skin, eyes, or gastrointestinal organs.”[9] As follows, it is of utmost importance to all, including the government, that children are protected from the virus to the highest degree possible. 

A keystone of family law and child custody negotiations is the idea that “visitation by a noncustodial parent is in the child’s best interest and should be denied only in exceptional circumstances where compelling reasons and substantial evidence should that visitation would be detrimental to the child.”[10]

In October 2021, Honorable Matthew F. Cooper of the state of New York held that the absence of parental vaccination could perhaps satisfy the Court as a “compelling reason” to deny visitation rights of a parent for their young child.[11] In C.B. v. D.B., Defendant sought to reinstate his visitation rights for his three-year-old child following a temporary restraining order placed due to his failure to receive a COVID-19 vaccine.[12] Prior to his boycott, medical professionals were not consulted by the Defendant, with his refusal to vaccinate being purely ideological. He failed to provide any compelling evidence to the Court as to why he could not get vaccinated, citing simply personal freedom and loose religious observance.[13] Additionally, the Defendant blindly claimed that, as he previously had COVID-19, his antibodies would further protect him from future infections.[14] Hon. Cooper denied these arguments, explaining that “[the father] failed to recognize that those rights are not absolute but are subject to his duty as a citizen to other citizens and his duty as a parent to his child.”[15] Thus, Defendant lost visitation rights as to his child because of his failure to be inoculated against COVID-19. 

There are multiple philosophical perspectives regarding the COVID-19 vaccine. On one side, consulting the work of Jeremy Bentham, “utilitarianism suggests that policies should be created to provide the greatest amount of felicity (or happiness) for the largest portion of society.”[16] Similarly, J.S. Mill introduced “the Harm Principle,” suggesting “that we should be free to pursue our individual will, as long as it does not cause harm to someone else.”[17] Following these principles, citizens should seek to become vaccinated against COVID-19, as it benefits the “common good.”[18] Yet, the United States has been a champion of “the freedom of choice”, a hallmark of our beloved constitutional democracy. Strong advocates for individual liberty insist that mandatory vaccinations infringe on personal freedoms guaranteed by the Constitution. Hon. Cooper rejected the latter perspective in C.B. v. D. B., writing “unfortunately, and to my mind, incomprehensibly, a sizeable minority, seizing upon misinformation, conspiracy theories, and muddled notions of “individual liberty,” have refused all entreaties to be vaccinated.”[19]

As judges are also personally impacted by the COVID-19 pandemic, they undoubtedly have their own personal philosophies when it comes to vaccinations. Yet, their judicial philosophy, which “refers to the underlying set of ideas and beliefs of a particular judge or justice which shapes his or her rulings on particular cases,” should ideally remain entirely separate from their personal philosophies.[20] Thus, they must strike a balance between their own personal feelings about the COVID-19 vaccine and their duty to interpret the law without bias. Has Hon. Cooper accomplished this in C.B. v. D. B.? 

With little case law on parental COVID-19 inoculation and its impact on custody, Hon. Cooper will likely be lauded as a clear voice of strong adjudication, with no tolerance for waffling.[21] Even so, it cannot be said if his opinion will stand the test of time and broader perspective. While Hon. Cooper’s opinion may lie with the majority ethically, he may be in the wrong legally. Living in a “bubble” of COVID-19 information and misinformation, the topic is very raw in the minds of all – including judges – leaving it nearly impossible to separate personal and judicial philosophy currently. The nexus of child custody and parental COVID-19 vaccination status is truly a cutting-edge legal issue that will evolve right in front of our very eyes.

Moving forward, Heller further suggests that, to produce proactive custody terms, parents expressly negotiate COVID-19 expectations.[22] The COVID-19 pandemic will have ramifications for the foreseeable future; thus, it would be wise to clarify such philosophies before it becomes a dire issue that potentially infringes on custody or visitation rights. 

[1] Lindsay Heller, No Vaccination, No Parenting Time, JDSUPRA, (Oct. 22, 2021).

[2] Mark Ashton, Vaccination Wars Go to Custody Court, JDSUPRA, (Sept. 1, 2021).

[3] Id.

[4] 321 U.S. 158.

[5] Id.

[6] Ashton, supra.

[7] Id.

[8] Coronavirus Outbreak and Kids, Harvard Health Publishing, (last visited Dec. 1, 2021).  

[9] Id.

[10] C.B. v. D.B., 21268, slip op. (Sup. Ct. of N.Y. Oct. 7, 2021). 

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Giovanni Poggi, Combating COVID-19 Anti-Vaxxers: Lessons from Political Philosophy, The Conversation, (Oct. 2, 2021).

[17] Id.

[18] Id.

[19] 21268, slip op at 2.

[20] Judicial Philosophy, Ballotpedia, (last visited Dec. 1, 2021).

[21] Id.

[22] Heller, supra.

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