Protecting Children From Unvaccinated Parents

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Unvaccinated Parents being Denied Visitation

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Unvaccinated Parents Are Putting Their Kids At Risk

WASHINGTON, D.C. (December 15, 2021) - Divorced parents worried about permitting an unvaccinated former spouse to continue visiting with their child should know that courts are increasingly willing to protect children from such a clearly established health risk, based in part upon legal precedents public interest law professor John Banzhaf helped to establish which protected children from visits with smoking parents.

Indeed, he says, 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 and fight to protect their children from this needless serious risk.

While the chances of death from COVID to children is low (but far from zero), there is a major risk of multisystem 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 interaction with classmates.

Also, on a different but related issue, if one parent refuses to permit an eligible child to receive a COVID vaccination, courts may also be able to help, based upon different legal precedents, he notes.

Here, according to 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 in New York City, 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 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.
  • 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.
  • And in at least one additional visitation case, a judge questioned why a parent who refused to be vaccinated should continue to be permitted to visit with his minor child.

Legal precedent is also beginning to develop regarding situations in which one parent seeks to be block an eligible child from receiving the protection of a COVID vaccination.

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  • 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."
  • 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.

A Simple Fix

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 subsequently after they agreed to change their behavior - because such 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 "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.”

The law professor suggests that the arguments for applying this well-developed legal principle to custody battles regarding parents who refuse to be vaccinated is even stronger than regarding a parent who smokes because:

  1. Even ardent nonsmokers' rights advocates would have to admit that the risk of COVID infection from an unvaccinated parent is much greater than the risk of tobacco smoke exposure from a smoking parent.
  2. It's much easier 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.
  3. The medical evidence, and the advice of virtually all experts, is far stronger and more compelling regarding being unvaccinated parents than parental secondhand tobacco smoke.
  4. While children likely to be adversely affected by smoke are in the minority and can easily be identified, all 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 most cases they probably will want to take them to a restaurant, movie or other theater, venue for a sporting event, etc. - something which increasingly is possible only if both child and parents are vaccinated.

This expanding movement to require vaccinations 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 want to have their children vaccinated against COVID, now have legal tools available to help make this possible.

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