For divorced couples, sorting through the details of custody and parenting agreements is a challenge in the best of times. But nearly two years into a global pandemic, Covid-19 is still adding new layers of complication to an already difficult process.
Covid-19 news and concerns change almost daily, and relevant legal considerations are evolving. We’ve previously written about how clashes between ex-spouses over whether to vaccinate their kids can raise custody problems. This topic heated up last spring when teens began getting “the jab,” and again this past fall when children 5+ became eligible.
Although it’s gotten somewhat less attention, there’s another facet to the vaccination issue that can impact divorced parents:
What happens when exes clash over getting the vaccine themselves? When one parent is vaccinated, and the other is not? Can a parent’s vaccination status affect custody or visitation rights?
Before vaccination was available, divorced parents had to make the safest decisions and plan to manage visitation under stressful and uncertain circumstances. For some families, the availability of a vaccine has simplified visitation; for others, it has increased tensions.
Over the last year, in New York and Illinois, cases have come before the court in which a vaccinated parent argued that an unvaccinated parent should not maintain visitation rights. In both of these cases, the judge sided with the vaccinated party. (In Chicago, the judge later rescinded his decision, but appeals were still possible.)
In New York, Judge Matthew F. Cooper ruled that the unvaccinated father must get vaccinated or undergo weekly Covid testing and wrote, “The danger 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.”
More recently, in a Los Angeles custody case, the judge, Harvey A. Silberman, raised the parental vaccine issue. After both parties agreed to vaccinate their child, Judge Silberman asked about the parents’ vaccine status. He then warned the unvaccinated father that he could “very well lose time” with his child and ordered him to provide proof of medical exemption or proof of vaccination to maintain his visitation rights.
The attorney for the mother commended the judge’s order, indicating that if the father ignored it, her client would pursue formal changes to the custody agreement.
The court cannot force an adult to get vaccinated. However, the question here, as the New York judge further pointed out, is not whether the court can require a parent to get vaccinated but whether a custodial parent can make vaccination a condition of visitation.
There are already several circumstances (violence, mental illness, substance abuse, emotional harm, etc.) in which visitation can be restricted or denied because it risks the child’s wellbeing. A central question is whether exposure to an unvaccinated parent amounts to risk. The court has a duty to protect the “best interests” of the child, which can trump a parent’s rights.
Many other factors may also influence this particular “best interests” situation. For example, whether or not the child is vaccinated; and the child’s age, given that very young children cannot yet be vaccinated against Covid-19. And any underlying health concerns that make the child more vulnerable to the virus.
Breakthrough infections also present new issues: some may argue that since even vaccinated people can get infected with new variants, a lack of vaccination shouldn’t affect visitation rights. Further, should a judge make a ruling about vaccination without expert medical testimony? And what about religious or medical exemptions? Given the partisan divide over Covid-19 vaccination in this country, is a court likely to view these questions differently in red vs. blue states/regions?
If you find yourself in conflict with your former spouse over Covid vaccination, the first step is to have a calm discussion about safety, health, and reasonable solutions. Remember that above all, you both want what’s best for your child, physically and emotionally. If you find yourself at an impasse, you’ll need expert legal counsel. The experienced family law attorneys at SFLG can help you navigate these thorny new custody concerns.
by Debra Schoenberg
