Ever since the COVID-19 vaccine was approved for emergency use, the subject of whether to get vaccinated has become an extremely political and divisive issue across the country. The issue of getting vaccinated is a personal decision that every adult has to make for themselves. What happens when divorced parents of a minor who share joint legal custody are at odds related to the vaccine? This issue has been making its way through the courts across the country, including right here in Nassau County, where Hon. Stacy D. Bennett of the Nassau County Supreme Court Matrimonial Center recently rendered a decision on such a case.
The case in question involved a father who was vaccinated and wished his son, of whom he shares joint legal custody, to be vaccinated, which the mother, who is not vaccinated, believed the vaccine was rushed and required more study.
The father filed an Order to Show Cause (OSC) seeking, among other related items, sole physical, and legal custody of the children.
During the trial, of which the only witnesses were the parents, both sides, in lieu of expert testimony, stipulated the family pediatrician, who has cared for the couple's children for over 10 years, recommended that all three of their children receive the COVID-19 vaccine. Prior to the recommendation of being vaccinated against COVID-19, neither parent had any issues with the pediatrician and admitted following all of the doctor's recommendations, including other vaccinations.
When the courts hear a case involving minors, decisions are based on what is in the best interest of the children. In previous cases throughout the state, courts have held that getting the COVID-19 vaccine is in the best interest of the children. In the case J.F. v. D.F., 74 Misc. 3d 175 at 181 (2021), the judge found that "the widespread availability of the Covid-19 vaccines, with their continued, proven efficacy in preventing the spread of the virus and the development of serious symptoms in those who contract it, has resulted in the expectation that one must be vaccinated to participate meaningfully in everyday society".
In C.B. v. D.B., 73 Misc. 3d 702 at 708 (2021), the court suspended the father's parental access after he refused to be vaccinated and was unable to provide a compelling reason for not being vaccinated.
In the case in front of Hon. Stacy D. Bennett, the court denied the motion to grant the father full legal and physical custody. However, following the decisions across the state and what is in the children's best interest, based on the testimony, evidence, and articulated medical opinion of the children's long-time pediatrician, the father was awarded medical decision-making authority solely and specifically regarding vaccinations.
When it comes to modifications to court orders for custody, courts have found that it is not necessary to make complete sweeping changes to resolve specific issues. In this case, the court modification was laser-focused on this one issue, leaving the remainder of the original court decision intact.