New York Law Journal: Family Court, Matrimonial Part Judges and the Child Vaccination Debate

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Family Court and Matrimonial Part Judges Should Brace Themselves To Decide the Vaccine Debate Amongst Parents
Even when a vaccine approved for children does become available, it will likely create a new dispute amongst parents as to whether or not to vaccinate their children, especially given the recently undermined credibility of the CDC, the FDA, and other public health institutions.
By Lisa Zeiderman | January 29, 2021 at 11:00 AM

As a family and matrimonial law attorney practicing throughout the COVID-19 pandemic for almost a year, I have seen parents battle over virtually everything including the pros and cons of having children attend school in person versus remote learning, the benefits of socialization for children attending daycare versus health concerns, the logistics of sharing access, travel versus staycations, attendance at extracurricular activities and playdates and the balance of many new stresses about children never before experienced.

The usual financial issues are even more pronounced given the raging pandemic, including the valuation of assets and in some cases their downward decline and non-payment and modifications of support due to rising unemployment. According to Stacy Francis, a Certified Divorce Financial Analyst with Francis Financial who practices in the divorce arena, “Many divorcing couples are having to reign in their spending due to COVID-induced unemployment and underemployment. The financial ramifications of the pandemic are wreaking havoc on the finances of these divorcing couples creating a pressure cooker situation.”

The hopeful news is that there are now two vaccines being distributed in the United States. However, with good news also comes new questions and conflicts. Issues regarding individual liberty versus public safety will undoubtedly take on a new urgency. For the moment, children under 16 are not included in trials for the Pfizer COVID-19 vaccine and Moderna just commenced trials for children ages 12-16 years of age. The American Academy of Pediatrics, however, is strongly advocating for including children in vaccine trials to ensure their return to school.

Even when a vaccine approved for children does become available, it will likely create a new dispute amongst parents as to whether or not to vaccinate their children, especially given the recently undermined credibility of the CDC, the FDA, and other public health institutions. The speedy creation of these vaccines will likely cause parents to be more conflicted when determining whether or not their children should be vaccinated. In response, health officials have continuously emphasized that the rapid creation of the vaccine is the result of new RNA technology, a large international effort and an all-hands-on deck push to create this vaccine. That said, it is safe to anticipate that as more vaccines become available, more disputes will develop. For example, what happens if a parent refuses to take the vaccine; should that parent then have their access with the children? Is it safe for the children to be with a parent who has not been vaccinated and who has no intention to do so? Can the child who isn’t yet vaccinated travel with a parent on vacation safely? Can children have playdates or attend activities without vaccination? And without vaccines for children available, parents are certain to differ on whether or not children can attend school safely.

The legal conflict over vaccines is not new as it has been going on for more than a century. In 1905, the U.S. Supreme Court issued its benchmark ruling on the conflict between individual and public health in Jacobson v. Massachusetts, when a Cambridge resident refused the smallpox vaccination on the basis that the law violated his Fourteenth Amendment rights to personal autonomy. The court found that it is within the police power of the state to mandate vaccinations to “guard and protect” public health.

As recently as 2019, following the worst measles outbreak in 25 years, New York Governor Andrew M. Cuomo signed legislation eradicating the non-medical exemptions, thereby ensuring that children attending school were vaccinated in order to protect the public. At the time, outbreaks were occurring in many places throughout New York including Rockland County.

Distrust of vaccines has been growing over recent decades. The situation has become so serious that “vaccine hesitancy” was identified as one of 10 major global health threats by the World Health Organization in 2019. Over the years, in my family law practice, I have encountered an increasing number of couples who do not agree on whether or not their children should receive vaccines. In rare cases, it has even been necessary to try a case to determine which parent is in the better position to make the determination as to whether or not to vaccinate, with pediatricians and other experts called as witnesses to testify about efficacy of vaccinating one’s children and any health risks.

Most parental objections involve safety concerns. A number of parents are worried about trace amounts of thimerosal, an ingredient hardly used today, or formaldehyde. Still others worry about short-term discomfort or long-term side effects, including learning disabilities. And some parents claim a religious objection to vaccines.

For the moment, children under 16 have no opportunity to obtain vaccinations. But even when a vaccine approved for children does become available, it will likely be an uphill battle to inspire consensus between parents who disagree. I anticipate that this will be another dispute, causing a flurry of motion practice. Further, once children at age 16 are eligible to receive vaccinations, the parental battle cries will certainly commence. The question in the near future will be: Will the judge or will a parent decide these foregoing issues? In my experience, when the parents cannot decide, the court will determine which parent will have the authority to make these types of “major decisions”. Moreover, for those already divorced, this issue will likely be raised by parents with their pediatricians, parent coordinators, attorneys and be the subject of post-judgement applications.

According to Bloomberg Law, on Nov. 7, 2020, the New York State Bar Association’s “governing body, the House of Delegates, approved a resolution that calls for the state to consider mandating vaccination based upon the guidelines established by public health experts.” Currently, supplies appear to be limited and the CDC has provided recommendations regarding the order in which the vaccine should be distributed. Throughout the next months, the United States will roll out the vaccine in tiers with the hope of vaccinating a majority of the United States population as quickly as possible. In the near future, there is an intention to create a vaccine for young children. And while some might believe there will not be any issue to dispute if it is mandatory that a child be vaccinated in order to attend school, I would say that there will likely be parents who will be then advocating for home-schooling, especially with the possibility of more parents working from home virtually.

Reprinted with permission from the January 29, 2021 edition of the New York Law Journal© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

Lisa Zeiderman is managing partner at Miller Zeiderman.

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