Anti-Vaxxers Denied Child Visitation, and Even Ordered to Shut Up; Courts Are Banning Visits; Ordering Vaccinations, and Issuing Gag Orders
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Anti-Vaxxers Denied Child Visitation
WASHINGTON, D.C. (December 27, 2021) - Parents who themselves refuse to be vaccinated against COVID, and/or refuse to permit their children to be vaccinated, are being denied their rights to visit with their children, and may eventually lose all custody.
Also, in a growing number of cases, courts are overriding parents' objections and ordering their children to be vaccinated, and in one case a parent was even ordered to shut up about the risks of vaccines, notes public interest law professor John Banzhaf.
The law professor speaks with some authority since courts are increasingly willing to protect children from clearly established health risks, based in part upon the many legal precedents he helped to establish which protected children from visits with smoking parents.
In a very recent case, a judge overruled a father's objections, and ordered that both of the children may be given the COVID vaccine. More specifically, the judge directed that the mother - who favored vaccinating the children - "will have sole decision-making authority with respect to any medical and health related decisions associated with COVID-19 vaccination or treatment, now and in the future."
Also, after finding that one child "suffers from vaccine anxiety" and is fearful that the vaccine may hurt or even kill her, the judge ordered the anti-vaxxer father not to discuss vaccines or the pandemic with his children, nor even to supply them with any social media or other information related to the pandemic.
Indeed, regarding the important legal precedents based upon exposure to secondhand tobacco smoke, the legal arguments are far stronger, and the evidence much more compelling, about the risks of exposing a child to an unvaccinated parent than to one who smokes in the child's presence, suggests Banzhaf, who is encouraging vaccinated parents to stand up for their legal rights and to fight to protect their children from this unnecessary serious risk.
While the chances of death from COVID to a child is low (but far from zero), there is nevertheless a major risk of multi-system inflammatory syndrome in children (MIS-C, which can lead to life-threatening problems with the heart and other organs in the body), lingering health problems (long COVID), hospitalization (which can be terrifying to a young child), and a week or more of quarantine away from in-person schooling and interactions with classmates and others.
Also, on a different but related issue, if one parent refuses to permit an eligible child to receive a COVID vaccination, courts may order the procedure, although based upon different legal precedents, he notes.
Legal Precedents Regarding Visitation
Here, according to Prof. Banzhaf, are some of the cases which are beginning to help establish important legal precedents regarding visitation with a unvaccinated parent.
- In a recent case a matrimonial judge suspended a father's visitation rights with his 3-year-old daughter just because he refused to get vaccinated. Despite his lawyer's claim that the father isn't a danger to the child because he already had COVID, the judge terminated the father's visitation privileges unless he gets vaccinated or subjects himself to a COVID test weekly, and to an antigen test biweekly.
In that case the ruling was that “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.”
- Another judge went even further, revoking a mother's right to visit her 11-year-old son because she refused to be vaccinated against the coronavirus.
- In another visitation case, a judge questioned why a parent who refused to be vaccinated should continue to be permitted to visit with his minor child.
- In still another case based upon the need to protect a child from the needless risk of exposure to COVID, a mother was granted exclusive possession of the matrimonial home; also, contact between the children and their unvaccinated father was limited to electronic means.
- A father who refuses to be vaccinated was told he could only exercise his court-ordered twice-weekly right to parenting time if he met with his children out of doors or at his mother’s house, and only if both he and the child are always masked.
- A court in New York has just ordered a expedited evidentiary hearing on January 3 to explore the level of animosity between the parents caused by the husband's refusal to permit his children to be vaccinated: "the immediate question presented is whether it is appropriate for the Court to continue joint custody on the limited issue of COVID health care or whether the Court must carve out a sphere of influence on this limited issue." The judge noted that he saw no need to hear from so-called "experts" regarding the effectiveness and safety of COVID vaccines for children.
- In another case, a judge simply took "judicial notice" of certain facts related to the virus and vaccines; thereby eliminating the need for any expert testimony, and precluding the anti-vaxxer parent from seeking to refute these "facts."
This is increasingly common when courts in Canada - which has a legal system very similar to that of the U.S. - address such issues. Indeed, as a leading Canadian newspaper recently reported: "Canadian Divorce Courts Come Down Hard on Anti-vaccine Parents Who Deny Covid-19 Pandemic . . . A string of recent rulings favour public health advice against pseudolegal challenges."
The article reported that: "Canada’s courts deal with conspiracy theorists, extremists and deluded fanatics all the time. There are rules that allow judges to dismiss vexatious lawsuits, and a new body of law has been built around how courts can dismiss or overrule people who make pseudolegal claims."
Legal precedent is also beginning to develop to authorize the vaccination of children even when one parent seeks to be block a child eligible for shots from receiving the protection of a COVID vaccination.
- In a case where one parent would not give her consent under a joint custody agreement, a unanimous Court of Appeals ruled that "a family court properly exercising its jurisdiction has the inherent ability to 'break the tie' when joint custodians cannot agree." Also, once the courts are involved, "equal decision-making power is not required for joint custody, and parties or trial courts are free to vest greater authority in one parent even under a joint custody arrangement."
- In one recent New Jersey case, an appellate court sided with a father who wanted his daughter to receive childhood vaccinations over a mother who said she had religious objections to the shots.
All of these cases were based upon the universally recognized principle and legal standard - decisions involving child custody and care must be based on "the best interests of the child."
The Best Interests Of A Child
Banzhaf notes that it's hard to argue that it's in the best interests of a child to be unnecessarily exposed to a possible carrier of a dangerous and sometimes crippling or even fatal disease among young victims, or to be denied the protection of vaccines proven to be safe and effective which are now available to all but the youngest children.
This argument was greatly strengthened in recent weeks since the Omicron variant is spread much more easily than when these earlier cases were decided.
In these cases, parents who refused to be vaccinated lost only their visitation privileges - not custody - of their children; a temporary situation, and one which could easily be corrected simply by agreeing to be vaccinated.
But Banzhaf pointed out that, in some situations, parents who subjected their children to the unnecessary risk of exposure to secondhand tobacco smoke lost custody permanently - even subsequently after they agreed to change their behavior - because the earlier deliberate and unnecessary exposure to the well known risk of secondhand tobacco smoke evidenced a blatant disregard for the child's health and well being.
As one appellate court ruled, the failure of the mother to discontinue smoking earlier "was strong evidence of a lack of proper concern for the welfare of a child," and a subsequent "belated cessation of smoking might evidence a desire for the custody of the child rather than concern for the welfare of the child.”
The law professor suggests that the arguments for applying this well-developed legal principle to custody and visitation battles regarding parents who refuse to be vaccinated is even stronger than regarding a parent who smokes because:
- Even ardent nonsmokers' rights advocates would have to admit that the risk of COVID infection from an unvaccinated parent is much greater and more serious than the risk of tobacco smoke exposure from a smoking parent.
- It's much easier for an anti-vaxxer parent to comply with a judge's wish to protect a child by getting a shot in the arm than to have to give up smoking, or at least give up smoking in one's own home for an extended period of time.
- The medical evidence, and the advice of virtually all experts, is far stronger and more compelling regarding the dangers from unvaccinated parents than from parental secondhand tobacco smoke.
- While children likely to be adversely affected by tobacco smoke are in the minority and can easily be identified, most children seem to be at equal risk of exposure to a COVID-infected person, especially a parent with whom they are likely to be in close contact.
The willingness of judges to protect children from exposure to visiting unvaccinated parents is likely to increase based upon surges of the pandemic, the additional threats posed by the Delta and Omicron variants, concern about a winter “twindemic,” and additional legal precedents as more parents come to realize they are not powerless to protect the health of their children, and more lawyers come to see that such cases are winnable.
Also, the willingness of parents to insist that their eligible children receive the vaccine, even over the objections of the other parent, and the willingness of judges to make that happen, will also increase as more jurisdictions and private businesses prohibit unvaccinated people, including children, from going to restaurants, movie and other theaters, sporting events and shows, etc.
After all, parents entitled to visit with a child don't want to just sit in a room with them. In many cases they probably will want to take them to a restaurant, movie or other theater, a venue to view a sporting event, etc. - something which increasingly is possible only if both child and accompanying parent are vaccinated.
Also, the expanding movement to require vaccinations of youngsters is likely to spread to schools as more children are eligible to receive the protection, and pressure to return to a near-normal school environment continues to grow.
In summary, parents who are themselves vaccinated against COVID, and who want to have their children vaccinated against COVID, and also protected from parents and others who aren't, now have legal tools available to help make this possible, and a growing number of attorneys ready, willing, and able to help them protect their children.