At a time when there is a COVID vaccine, losing custody for your child’s lack of medical care is a real possibility. This is especially true for two Nebraska parents who refused to provide cancer treatment for their 4-year-old son. Their custody case reached the Nebraska Supreme Court.

Custody Medical Care

Breaking Away

The 4-year old, named Prince, was diagnosed with alveolar rhabdomyosarcoma of the right forearm with local metastases to the axillary lymph nodes. His parents were assured that his condition was curable with regular chemotherapy and radiation, but without treatment, the condition would be fatal.

His parents, Mohamed and Abak, informed of Prince’s diagnosis and prognosis, intentionally kept him from receiving treatment. The state became concerned that their actions placed Prince at a risk of harm.

Dr. Melissa Acquazzino, a cancer specialist, told the parents that Prince would likely die within six months if he didn’t get the treatments.

Prince’s initial treatment went well. His tumor visibly shrank and his side effects were minimal. The hospital’s social worker also arranged for money to help the parents repair their car so they could make the weekly chemo appointments.

But two months after treatments began, Prince began experiencing side effects such as nausea, vomiting and fatigue, court records indicated, and his parents began skipping some of his appointments.

The father felt the doctors were giving Prince too much medicine, too quickly, and that the cancer would not kill his son, but the treatments would.

Prince did attend his radiation appointment on October 2, 2019 but after that, however, neither parent brought Prince to any further radiation or chemotherapy appointments.

Hospital officials contacted the state Child Protective Services agency, which investigates cases of child abuse and neglect. A state investigator experienced difficulty in locating Prince, who had been living with his mother at a Lincoln homeless shelter.

The father, according to the investigator, said the mother was in Arizona seeking a second opinion. The father also disagreed with the investigator’s opinion that Prince was in danger of dying if his treatments were not resumed.

During a four-day trial in Lancaster County Juvenile Court, there was no evidence presented that the parents had sought a second medical opinion, nor that Prince had received any treatments. Neither parent raised a religious or cultural objection to the treatments.

The trial court ruled that the child lacked proper parental care by reason of the “fault or habits” of both parents. The parents appealed.

Florida Child Custody

I’ve written about child custody issues as they impact divorce and paternity issues. The Nebraska case, by contrast, involved a dependency matter. In Florida, “custody” is a concept call parental responsibility, which can be either shared parental responsibility or sole parental responsibility.

In divorce and paternity cases generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities. Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child.

In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

Some of those factors concern the demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent and of course, evidence of, child abuse, child abandonment, or child neglect.

As seen in Nebraska, when child neglect, abuse or abandonment come into play, a state’s child protective services get involved.

Cutters and Custody

The Nebraska Supreme Court upheld the decision citing previous rulings that “proper parental care” included providing for the “health, morals, and well-being” of a child, and not placing them “in situations dangerous to life or limb.”

The child’s mother, Abak, argued that that Prince did not lack proper parental care by reason of her fault or habits and that Prince did not face a definite risk of future harm.

But the Supreme Court found that she didn’t address the crux of the State’s case: that she took Prince out of Nebraska and, for more than 3 weeks until the State was able to locate them, kept Prince from receiving the treatment essential to his survival.

The Father tried to blame the Mother, arguing the failure to treat Prince’s cancer was exclusively on Abak. The Supreme Court did not buy it.

The high court found it more likely than not that Mohamed supported and bears responsibility for the decision to remove Prince from treatment.

As an aside, a Nebraska jury found Abak guilty of negligent child abuse and the Father reportedly was quoted as saying:

“We are a family in pain and our human rights have been violated this is beyond Nebraska this should be international because for you to take a child from a parent that has never wronged the child this is wrong,”

The Omaha World Herald article is here.

The Covid-19 vaccine is here, but big child custody questions are presenting themselves when parents disagree about vaccinating their children. As countries around the world start administering the vaccinations against COVID-19 on a massive scale, many parents are wondering what happens if one of the parents objects to vaccinating their child.

covid vaccine child custody

Point of Contention

In a recent English case, the parents objected to their child receiving various vaccinations which are routinely administered to babies. The father was driven by the fundamental belief that neither the court nor the State has any jurisdiction to take decisions in relation to his children.

The judge found:

It is self-evident that for a healthy, young infant, the risks contingent upon not vaccinating him significantly outweigh the benefits. The conditions identified include potential for catastrophic consequences which, as illustrated, involve paralysis, seizure, learning disabilities, visual loss and cancer.

The Court then ruled that the vaccinations should not be characterized as “medical treatment” but as “a facet of public preventative healthcare intending to protect both individual children and society more generally.”

Florida COVID-19 Vaccinations and Child Custody

I wrote an article on the relationship between vaccinations and child custody in Florida before. In Florida, the prevailing standard for determining “custody” is a concept call shared parental responsibility, or sole parental responsibility. Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child. In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s physical health and medical treatment, including the decision to vaccinate, are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court.

In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions, such as the responsibility for deciding on vaccinations.

The decision to vaccinate raises interesting family law issues. It is important to know what your rights and responsibilities are in Florida.

Parting Shots

In re B, was another case in Britain which involved another English vaccination case, only this time it was a private matter between parents, as opposed to the state requiring a vaccination.

The case concerned a 5-year-old girl, B, whose parents were separated and unable to agree as to her immunization. Before the parents separated, B had received all the recommended vaccinations. Under the recommendations of Public Health England, she was now due (or overdue) 3 further vaccinations.

The father, though lacking relevant medical expertise, had carried out extensive research and exhibited over 300 pages of material in support of his position. The judge extrapolated the father’s 7 key points and Dr Elliman addressed the medical issues. The court dismissed the father’s proposition that where parents disagree on a child being vaccinated, then the status quo should be preserved as wrong in law.

Dr Elliman acknowledged that no vaccination is 100% risk free, but that vaccination has greatly reduced the burden of infectious disease.

The judge noted the paramountcy principle and the principle that delay in determining the matter may be prejudicial to B’s welfare. In respect to the no order principle, the judge recorded that the court should decide the matter as the parents’ views were polarized. With regard to Article 8 of the European Convention, His Honor Judge Bellamy stated that any order made by the court must be proportionate and in B’s best welfare interests.

Having considered the case law, the judge then determined that Dr Elliman’s opinions were ‘mainstream’ whilst the father’s views were biased and unreliable. In conclusion, the judge granted the specific issue order and made a declaration that it was in B’s best welfare interests to receive the vaccinations.

The article on the British cases by Sarah Williams is here.

Tag: child custody medical decisions

Losing Custody for Lack of Medical Care