Parent, Child Vaccination Issues Add Another Dimension to Family Court Cases

By Jennifer Andrus

April 26, 2022

Parent, Child Vaccination Issues Add Another Dimension to Family Court Cases


By Jennifer Andrus

Some child custody cases in New York have taken on an extra dimension with parents disagreeing over whether their children should be vaccinated against COVID-19. Other parents have asked Family Court judges to require ex-spouses to be tested for the virus before visiting with their children.

At a panel discussion presented by the New York State Bar Association Monday, Professor Lisa Grumet of New York Law School spoke about several recent New York cases dealing with disputes between parents over COVID-19 vaccination and testing. She said most were at the trial rather than the appellate level.

One case involved a disagreement between parents over public school versus homeschool because masks were required in school. Grumet also mentioned two instances in which parents had differing views on vaccination, and testimony from the child’s pediatrician was instrumental in deciding for the parent who wanted the child vaccinated.

“The court was not actually ordering the child be vaccinated. But by denying the father’s motion, the court was facilitating the child be vaccinated because the mother would arrange for that,” she said.

The COVID battleground has extended to the  New York State Legislature where there are competing bills over whether a COVID vaccine should be added to the list of mandatory inoculations for school children.

“There is a bill to add COVID to the list. There is also a bill to prohibit making COVID vaccinations mandatory. There has been more political conflict over the COVID vaccine than other types of vaccinations,” she said.

School Rules When it Comes to Vaccines

In 2019, the New York State Legislature repealed a vaccine exemption for religious reasons. The removal of the exemption was challenged in F.F. v. State of New York, and The Appellate Division, Third Department, ruled in favor of the state in March of 2021. The Court of Appeals declined to grant the plaintiffs leave to appeal in October of 2021. In January, the plaintiffs filed a petition for certiorari seeking to appeal to the U.S. Supreme Court.

Both Grumet and the other panelist, Lorraine Silverman of Copps DiPaola Silverman, discussed how vaccination can become a major issue in cases where the parents share custody of children. Even parents who previously got along developed different approaches to caring for the children during the pandemic.

Silverman says it’s an even bigger issue for parents who are not married. “Mary is looking for sole custody so she can get the children vaccinated. If the parents were married, there would be no court order. Mary could get the children vaccinated even if her husband disagreed,” she said.

Practical Considerations

When looking at the family dynamic, several questions must be asked such as:  Is there any history of domestic violence, mental or physical health problems or substance use? Is there an exposure risk with a family member who is immunocompromised? Did the children receive other childhood vaccines on schedule or were there issues or delays?  Will children be in a high-density school or homeschooled? Does one or both parents work in a field such as health care or public safety with greater exposure risk?

Silverman says gathering information about the children and the family from their pediatrician can be an important element in such cases. Did the children come regularly for checkups? Is this a new doctor just hired by parents, or a professional who has cared for the child/ren for years? On the education front, are the kids grades suffering? Are there other challenges or considerations in the classroom. Do the children participate in team sports or other activities?

Representing the Child

Silverman advises family law attorneys who represent children. She cited Rule 7.2 “Function of the Attorney for the Child” in taking a zealous approach to advocacy.

Silverman says she first finds out what the child wants and treats them as seriously as she would an adult client.

“We stand in the same shoes and in the same manner as if we were representing adult clients which I want all of us here to remember,” she said.

She advises attorneys to look at the petitions filed by the parents and meet privately with each child in the family. She considers whether the parents have always been difficult or whether the vaccine issue is the source of a new conflict between them. Silverman also recommends looking at each parent’s social media history to determine whether long-held beliefs are influencing their concerns over vaccines.

Context Is Key 

With changing protocols and new scientific information coming in, previous decisions may no longer be effective.

“The guidance is changing; the rules are changing. What’s happening in the schools and the New York State Legislature is certainly going to impact advocacy in this area,” Grumet said.

The Continuing Legal Education program was co-sponsored by the Committee on Children and the Law, the Family Law Section and the Committee on Continuing Legal Education. You can register for the program here. 

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