Judges Ordering Child Vaccinations, Denying Visitation, Perhaps Custody; Just As Some Who Refused to Quit Smoking Lost Custody of Their Children
Judges Ordering Child Vaccinations
WASHINGTON, D.C. (November 29, 2021) - Parents who refuse to let a child receive the Covid vaccine are increasingly likely to have a judge order the procedure, often by giving the parent seeking to protect the child legal custody to make such decisions, notes public interest law professor John Banzhaf, who predicts that the trend is likely to increase if not accelerate because of new surges, and the discovery of a potentially even more deadly variant.
For example, in a case where one parent would not give her consent under a joint custody agreement, a unanimous Kentucky 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."
Moreover, just as some parents lost custody of their children when they refused to stop smoking at home, or in many more cases were forced to quit or face a lost of visitation privileges, unvaccinated parents are already being denied visitation, and may soon even begin to lose custody of their children, says Banzhaf, who led the legal movement to raise smoking as an important and often decisive issue in child custody proceedings.
He cites a recent case in New York City in which 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 that 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 Justice Matthew Cooper ruled 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.”
A judge in Illinois went even further, revoking a mother's right to visit her 11-year-old son because she refused to be vaccinated against the coronavirus, notes Banzhaf. And 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 father was limited to electronic means.
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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" - since 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 safe and effective vaccines which are now available to all but the youngest children.
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 after they agreed to change their behavior - because such conduct 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 "was strong evidence of a lack of proper concern for the welfare of a child," and a "belated cessation of smoking might evidence a desire for the custody of the child rather than concern for the welfare of the child.”
Since the risk of becoming infected with Covid from an unvaccinated parent is many times higher than the risk of disease from exposure to a parent's tobacco smoke, and it's far easier for a parent to get vaccinated than to quit smoking, judges are even more likely to terminate the custody of a parent for refusing to be vaccinated than with regard to continuing to smoke, at least once vaccinated parents begin to raise this issue in divorce, visitation, and custody cases, says Banzhaf, whose legal research on how to raise the smoking issue in such cases should be equally applicable to raising the vaccination issue.
Actually, the legal objection to continued visitation and/or custody can even be raised by third parties if the vaccinated spouse is reluctant to do so.
Legal Complaint Against Smoking
Banzhaf vividly recalls a segment of the Oprah Winfrey TV program where a grandmother was planning to file a legal complaint against her own adult daughter for refusing to quit smoking in the presence of her young child (the granddaughter).
Fortunately the professor was able to help convince the mother, live on Winfrey's TV program, that subjecting her child to secondhand tobacco smoke created an unnecessary and unreasonable risk to her child's health. As a result, the mother changed her behavior, so the grandmother did not have to make the difficult choice of choosing between her adult daughter and her granddaughter's health.
But, had a legal complaint been filed, Banzhaf says the court almost certainly would have issued a order designed to protect the child. Indeed, he says, judges in thousands of cases, and in the great majority of states, have issued ordered prohibiting smoking, not just in the child's presence, but sometime 24 or even 48 hours before a child is scheduled to visit a parental home.
Similarly, once parents begin to effectively raise the issue of exposure to Covid, and/or refusal to vaccinate children, in divorce, custody, and/or visitation proceedings - as nonsmokers did in many cases in which the law professor assisted - Banzhaf expects that judges will be even more willing to deny in-person visitation and even child custody to parents who refuse to be vaccinated despite the ever growing evidence of deadly risk, and the overwhelming opinions of governmental and other medical authorities.
Moreover, once vaccinated parents begin to follow the well trodden path established by nonsmoking parents, the legal challenges based upon their children's health - and the resulting rulings, which can be expected to occur very promptly - will provide an additional strong incentive for parents concerned about their children to finally get themselves vaccinated, and to get their children vaccinated as well, predicts Banzhaf.