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Child CustodyCovid Vaccination Raises Custody Issues In New York

January 18, 2022

Mirroring the national debate, covid vaccination has become an issue in divorce and child custody cases. New York courts are now being forced to grabble with issues in custody and parenting cases when children’s parents cannot agree about either their or their children’s vaccination status. These cases, and the cases that are yet to arise, are forcing the Courts to intervene in the myriad issues where parental rights intersect with medical decisions for their children.

Two recent cases frame some of the issues. In one case, a court was forced to intercede where the child’s parents could not agree on whether their child should be vaccinated. In another case, the court considered whether a parent who refused to be vaccinated should be allowed to have continued in-person parenting time with a child.

As in all cases involving children, the inquiry is primarily focused on determining the best interest of the children. In that regard, these cases differ from governmental or employer mandates for vaccination. Instead, these cases are limited to custodial decisions regarding the health, safety, and well-being of children are within the purview of a New York court adjudging custody matters.

Can I Court order a child to be vaccinated over one of the parent’s objections?

A mother who had joint custody of the parties’ children sought to vaccinate her 11-year-old daughter over the objection of a father. The father, a scientist, who was himself vaccinated, wanted to delay having the daughter vaccinated until studies on the long-term health consequences of the covid vaccine were completed. The parties had two older children who were vaccinated.

Citing the uptick in cases and recognizing that the scientific studies may never catch up with the urgency of the pandemic, the Court issued an order, allowing the mother to have the child vaccinated. In reaching its decision, the Court considered the testimony of the child’s pediatrician and balanced the potential risks from receiving the shot against the risk that the child would become severely ill and further spread the virus to others.

As the Court noted:

The paramount concern when making any parental determination in which the court substitutes its judgment for that of either parent, “is the best interests of the child, under the totality of the circumstances.

This court, weighing the child’s best interests, cannot wait for the vaccine’s side effects or efficacy to be scientifically established beyond a reasonable doubt or even to the father’s satisfaction. The imminent risk of contracting the disease is too high and the consequences of acquiring it potentially too dire.

Can a Court condition parenting time on being vaccinated?

A custodial mother sought to suspend the parenting time of the non-custodial father who refused, for personal reasons, to get vaccinated vaccine or get regularly tested. The mother was vaccinated, but the child was too young.

Noting the “rebuttable presumption that visitation by a non-custodial parent is in the child’s best interest and should be denied only in exceptional circumstances” where “compelling reasons and substantial evidence show that visitation would be detrimental to the child,” the Court found that continued in-person parenting time was not in the child’s best interest. As a result, the Court suspended the father’s in-person access until he was vaccinated or was regularly tested – something the father, at least until that point, was unwilling to do.

The Court noted that the father’s refusal to get vaccinated not only put his child at risk, but also increased the risk of infection to any person with whom the child comes into contact, including the mother, the child’s classmates, and their families.

Noting the “new normal” – the expectation that one must be vaccinated to participate meaningfully in everyday society, the Court emphasized that the child’s pre-school required proof of vaccination as a condition of pick-up and drop-off and for participation in activities. Therefore, the father’s refusal to be vaccinated ran contrary to some of his parenting responsibilities.

As the father was, in effect, putting his interests above the interests of the child, the Court suspended his in-person access until he was vaccinated or agreed to submit to regular COVID-19 testing.

More Covid Vaccination Custody Cases To Come?

These two cases are the tip of the iceberg. There will be litigation over parenting, covid, vaccination, risk mitigation for the foreseeable future. I expect there will be issues over the safety of travel, summer camps, extended family gatherings, or anything that can be perceived to put a child at risk of Covid exposure

If you have a custody, visitation and parenting-time issues or any covid concerns for your children, please contact us.



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