Tag: COVID and custody

New York Judge Orders Child Vaccinated Over Parent’s Objection

Posted by Ron Kauffman on

More news on child custody and vaccines as a family judge in New York orders an 11-year-old child to get vaccinated against COVID over a parent’s objection. It is a surprising child custody dispute over vaccination between a child’s lawyer/mother and scientist/father.

Child Custody Vaccination

Start Spreading the News

Donald and Jeannie Figer were divorced in 2012. Their divorce did not end the controversy. The mother, Jeannie Figer, is a lawyer in Rochester and her ex-husband, Donald Figer, is reported to be a scientist and professor at Rochester Institute of Technology. Their dispute? Must their child be vaccinated against COVID-19.

The recent decision comes out as the highly transmissible Omicron variant is quickly taking over. New York is becoming known as a state with some of the strongest vaccine mandates. While New York only encourages children to get vaccinates, New York City just expanded its COVID-19 mandates, setting vaccine requirements for children as young as 5 years old, and for workers at all private companies.

The father, who has himself been vaccinated, didn’t want them to rush the shot for his daughter as there were not any studies conducted on long-term side effects of the vaccine on kids, court papers say.

But Monroe County Supreme Court Judge Richard Dollinger ruled that time is of the essence in getting the 11-year-old vaccinated against the virus, and sided with Jeannie, who works as an attorney.

‘”Waiting — to be ‘sure,’ as the father asks — is simply untenable, when the specter of a killing or incapacitating disease is swirling in the environment surrounding this young girl. Scientists may never catch up to this ever-evolving and elusive virus and variants.”

The judge ordered the mother to get her daughter a vaccination appointment as soon as possible. It is unclear if the girl has since had the shot.

Florida Child Vaccinations

I’ve written about the injection of vaccines into Florida child custody cases 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 against COVID-19, are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court.

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.

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 and other states.

New York State of Mind

Judge Dollinger noted that Monroe County – where the child lives – has the second-highest rolling seven-day average of new cases per day since November 22nd. Many speculate the judge also worried about the rising Omicron variant of the virus, and an uptick of cases locally in upstate New York.

Judge Dollinger himself noted that he was confused about to why:

“an accomplished scientist and professor would oppose a child vaccine authorized by the CDC and universally encouraged by state and local physicians and other health officials.”

Jeannie Figer pointed out that both she, Donald, and their 19 and 17-year-old daughters have already been vaccinated and wanted the 11-year-old to join them. The ruling adds that the girl’s doctor has also recommended the vaccination.

Judge Dollinger also found that the risks of side effects from the vaccine are lesser than what would happen if she tested positive for virus, including spreading it to others.

‘”This court is unwilling to kick this can down the road,. ‘It could be years before any researchers have exacting accounts of either the short or long term consequences of the administration of this vaccine on 11-year-old girls with this child’s physiological makeup.'”

The Centers for Disease Control’s Advisory Committee on Immunization Practices in November unanimously voted 14-0 to recommend the Pfizer-BioNTech’s Covid pediatric vaccine dose for five to 11-year-olds. Over 700 children in the U.S. have died of COVID, but many American parents have cited the relatively low risk COVID poses to children as reason to hold off on vaccinating younger children.

The MSN article is here.

Court Orders Covid Vaccination of Children

Posted by Ron Kauffman on

In a child custody case in Kentucky, a family court orders the COVID vaccination of two small children. Last week a Kentucky appellate court decided the important issue of whether the family court judge was legally entitled to require the COVID vaccinations for the children over one parent’s objection.

Kentyck covid

The COVID Vaccine Derby

Recently Canada resolved the issue over whether an unvaccinated parent can actually lose their child custody rights for refusing to vaccinate their child. This week’s issue is slightly different, can the court require a vaccination over another parent’s strongly held religious views and objection.

In the Kentucky case, the parties had divorced in 2018. They shared joint custody and equal timesharing of their two children, aged eight and six. Throughout their marriage, and divorce, the parents always declined the required immunizations for their children on religious grounds.

In fact, there was proof that they had signed affidavits in New York and Georgia declining vaccinations for their children on religious grounds and when they divorced, they signed Kentucky’s form for declining immunizations on religious grounds.

However, two years later, the father had a change of heart. On June 30, 2020, he filed a motion for an order to allow him to vaccinate the children. The Mother objected, and a hearing was held in Family Court to resolve the question.

The Father testified that he originally agreed not to vaccinate the children because he was leaving for deployment with the military and was unable to meet with the pediatrician. He thought there was an understanding the parties would just delay the vaccines.

But, after he finished his military service, he began discussions with Mother regarding vaccinations for the children. Father stated that when he signed the vaccination declination affidavit he had doubts about the development of certain vaccines by use of aborted fetal cells.

Now he believes the use of aborted fetal cells is so far removed from the process of developing vaccines that his concerns no longer exist. He believes it is appropriate to vaccinate the children. He wants to follow the advice of the children’s pediatrician to vaccinate.

The Mother vehemently objected saying that doing so violates her firmly held religious convictions opposing the use of aborted fetal cells in the manufacture and design of the vaccines. Rather, she prefers using medication and antibiotics to treat her children. She argues there was an understanding between her and Father that the children should not be vaccinated and produced multiple documents the parties signed to that effect.

Florida Child Vaccinations

I’ve written about the injection of vaccines into Florida child custody cases 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.

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.

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 and other states.

Kentucky Fried Covid

The family court trial judge ruled it was in the children’s best interest to be vaccinated. The judge reasoned that, on balance, the children’s health and welfare outweighed the religious beliefs of one parent.

The court ordered that the parties consult with the pediatrician to craft a “catch-up” schedule bringing the children current on vaccinations and other immunizations, or, if the parties were able, to agree to alternative vaccines that could potentially be utilized that do not use aborted fetal cells in their development and design.

In affirming the trial judge’s ruling on appeal, the appellate court noted the overriding principle that the best interest of each child must be served by the family court’s decision.

The mother’s argument did not articulate any detriment or risk of harm to her children by not vaccinating them. The father simply argued her religious views should not take precedence over his.

The court ruled that when there is an impasse between a Mother and Father a family court properly can ‘break the tie’. 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.

The family court heard from both the Mother and Father, and found that it would be in the children’s best interest to be vaccinated in accordance with their pediatrician’s recommendations and Centers for Disease Control and Prevention (CDC) guidelines.

The Kentucky appellate opinion is here.

COVID-19 Vaccine and Child Custody Modification

Posted by Ron Kauffman on

A new case on the COVID-19 vaccine and child custody modification in Colorado asks what happens after the divorce when a parent has a change of heart about vaccinating the children, while the other maintains a religious-based objection to vaccination?

COVID CUSTODY

Rocky Mountain Parenting

In a post-divorce dispute, a court had to address the burden of proof to apply when considering the request of a father to modify the medical decision-making responsibility clause of their parenting plan to allow him to vaccinate the children, over the objection of the mother.

The parties’ parenting plan provided for joint medical decision-making authority and that “[a]bsent joint mutual agreement or court order, the children will not be vaccinated.”

The father had a change of heart about the children remaining unvaccinated. He described a “wake-up moment” he had when traveling for business to Seattle while the city was experiencing a measles outbreak, and then being afraid to be around the children after he got home out of fear of unknowingly exposing them.

Mother opposed vaccinating the children, in part, because it conflicted with her religious beliefs and also argued that vaccines pose a risk of side effects for the children. Specifically, because mother has an autoimmune disease and the children all had midline defects at birth, she asserted that vaccinations for the children are contraindicated.

The parents agreed a parenting coordinator/decision-maker (PCDM) could decide the issue. However, the PCDM declined to render a decision, stating that the issue was outside of her expertise and likened rendering a decision on it to “practicing medicine without a license.”

While the trial court rejected mother’s medical-based objections, the judge found that vaccination would interfere with mother’s “right to exercise religion freely,” and therefore imposed an “additional burden” on father “to prove substantial harm to the children” if they remained unvaccinated.

The court ruled that father had not met this additional burden and denied his motion to modify medical decision-making responsibility.

Father appealed.

Florida Vaccinations and Child Custody

I have written about 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.

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.

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.

A Double Black Diamond Issue

The appellate court reversed.

Generally, Colorado has a substantial change in circumstances test for modifications, so that a court cannot modify a parenting plan unless it finds that a change occurred in the circumstances of the child or of a party and that modification is necessary to serve the child’s best interests.

In Colorado, a court has to keep the decision-making responsibility allocation from the prior decree unless doing so “would endanger the child’s physical health” and the harm likely to be caused by a change in decision-making responsibility is outweighed by the advantage to the child.

In this case, the court found that the mother’s free exercise rights are not implicated by a court’s allocation of decision-making responsibility between parents because when allocating decision-making responsibility between parents, the court is merely expanding one parent’s fundamental right at the expense of the other parent’s similar right.

The trial court erred by imposing a heightened burden on father to show substantial harm — a burden only relevant to show a compelling state interest under a strict scrutiny analysis — when considering his request to modify the parenting plan.

Once the court found the failure to vaccinate endangers the children’s physical health, and that the risks of vaccination are “extremely low” as compared to its benefits of “preventing severe illness, permanent severe damage, and death,” it should have proceeded to the second prong of the inquiry, namely, whether the harm likely to be caused by changing decision-making responsibility outweighed the benefit to the child.

The opinion is here.

 

The Covid-19 Vaccine and Child Custody

Posted by Ron Kauffman on

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.

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.

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.

 

Canada, COVID, Custody, and Class

Posted by Ron Kauffman on

The COVID pandemic resulted in a recent child custody case from Canada, which decided between in-person class or remote, online education. The family judge in Ontario found the father in contempt for registering their daughter for in-person class, but then the order took a surprising turn.

Covid Education

Learning the Hard Way

In the Canadian custody case over COVID and classroom learning, the parties lived together from 2009 to 2014, and had a nine-year-old daughter. After their separation, the child timeshared between parents on a week on/week off basis. The parents shared joint custody and equal parenting time.

Importantly, their custody decree also stated that both parties had to agree to a decision concerning the child’s education, and if they disagreed, they would go through mediation before initiating litigation.

Last March, the COVID-19 pandemic impacted in-person education at schools. From July to August, the parties exchanged emails discussing what they should do about the child’s education when the elementary school reopened in September.

The father wanted the child to attend school in person and to take the school bus, while the mother objected. Despite the mother’s opposition, the father registered the child for in-person education and arranged for the child to be transported by bus during his weeks.

The mother asked the court to order their child attend school remotely from home through online learning and that the father be found liable for contempt of court due to his act of unilaterally registering the child for in-person education in violation of the order. The father in turn asked the court to order that the child attend school in person and use the school bus for transportation.

Florida COVID Custody and Class

I’ve written about the custody and education before. In Florida, shared parental responsibility is the preferred relationship between parents. 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 education are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court. At the trial, the test applied is the best interests of the child.

Determining the best interests of a child is based on an evaluation of statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

The statute authorizes one parent to have ultimate responsibility for certain decisions. For example, education is an area of ultimate responsibility a court can award. When a decision on education goes to trial, the court grants one parent ultimate responsibility to make that decision.

Oh Canada!

The Ontario Superior Court of Justice ruled that it was in the child’s best interests to attend the elementary school’s French Immersion Program in person and to be permitted to take the bus for transportation between her father’s house and the school.

“In my view, if schools are open, children should attend unless there is an unacceptable risk to either the child or a member of their household that is created by the fact the child attends the school and may contract the virus,” wrote Justice Mark Shelston for the Superior Court.

Justice Shelston considered a number of factors presented by the parties in determining the child’s best interests. For instance, a doctor’s report indicated that the child was at risk for psychosocial and school difficulties. The doctor recommended that the child have an individual educational plan that would support her needs.

Justice Shelston noted that this plan required the child’s in-person attendance so that she could work closely with the teachers. The child would also benefit from the French social and linguistic milieu provided by in-person attendance.

Though the mother alleged that members of the immediate and extended family, including the child’s grandparents, suffered from underlying chronic medical conditions – which placed them at a heightened risk for severe illness from COVID-19 – Shelston said that there was no medical evidence to support this allegation. Neither was there evidence that the grandparents lived with the child.

As regards the child riding the school bus, Shelston stated that there was no basis to conclude that the child would be at higher risk of contracting COVID-19 when taking the bus.

Though the father was successful with regard to the school issue, the court ordered him to pay the mother’s costs associated with the motion for contempt. The father was held liable for contempt of court because he had registered the child for in-person education and had made school bus arrangements without the mother’s approval, in breach of the 2017 court order to which both parties had consented.

The Law Times News article is here.

COVID Custody and Vaccinations

Posted by Ron Kauffman on

COVID and child custody are back in the news as news of the availability of vaccinations hitting the market becomes a reality. COVID first made family law news in Miami early in the pandemic, when an E.R. doctor was stripped of custody of her 4-year old daughter. What impact will COVID vaccines have on custody?

covid custody vaccine

Getting to the Point

In a recent Broward case, Melanie Joseph wanted to see her son, but a judge wouldn’t let her — for no reason except that she won’t wear a mask. Joseph’s 14-year-old son has asthma, a condition that could put him at risk of contracting COVID-19 during this pandemic, court filings show.

Broward Circuit Judge Dale Cohen called the mother an “anti-mask person” who had the “audacity” to brag about it on Facebook. Many take issue with the decision, but it illustrated how judges in family court consider the health risks of COVID-19.

Other cases followed across the country, most involving at least one parent working on the front lines of the crisis. Judges have been patient in considering both sides of coronavirus cases, but that doesn’t mean they’re not willing to step in when they think the child’s health might be at risk.

Florida Vaccinations and Child Custody

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.

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.

I wrote an article on the relationship between vaccinations and child custody in Florida before. 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.

A Dose of Reality

Melanie Joseph, who moved to North Carolina from Coral Springs at the outset of the pandemic response, drew Broward Circuit Judge Cohen’s ire by posting a picture of herself on social media that went viral: it showed her not wearing a mask while in the waiting room of her oral surgeon’s office in June.

Joseph’s selfie ran with the caption “no mask for this girl” on social media, drawing the ire of the Broward judge handling her custody case. She defended her selfie by saying she was alone in a doctor’s waiting room in North Carolina, where there was no mask requirement at the time.

“She’s one of those anti-mask people and she’s got the audacity to post that on social media,” the judge said. “She’s going to wear a mask. If she doesn’t, time-sharing is not going to happen.”

Cohen’s pointed criticism came in an online hearing Sept. 8 and prompted Joseph’s attorney to ask him to remove himself from the case, which has dragged on for 13 years (the child at the heart of it is 14). Cohen declined.

The judge said in-person visits would have to be supervised because he doesn’t trust Joseph, 43, to wear a mask. And he would not consider a long-distance parenting plan — which outlines each parent’s rights when they don’t live in the same state — between Joseph and her son until the COVID crisis has passed.

“When this pandemic is over and there’s no cases and there’s a vaccine … the mother is going to need to get a vaccine as well. When I have proof that everybody’s safe and the child’s not at risk or danger, then we can talk about a long-distance parenting plan.”

Ultimately, the issue of masks never made it into Cohen’s written ruling, issued late last week, and he softened the vaccine mandate. The order states:

“After a safe and reliable vaccination against COVID-19 is available, the mother may be vaccinated and the child may be vaccinated, thus eliminating that particular danger.”

Joseph acknowledged in an interview that she posted a selfie taken at her oral surgeon’s office in June. “No mask for this girl,” she wrote in the caption. At the time, Joseph said, there was no mask mandate in North Carolina and she was alone in her doctor’s waiting room.

She accused the judge of letting his personal political views cloud his judgment in the case. “My case has been in the court system for a number of years and I have experience with court proceedings,” she said. “What occurred is unconstitutional and should never happen to a parent.”

The child’s father thinks Cohen made the right decision. “My client has a legal obligation to protect his son,” said Donna Goldman, the father’s attorney. “This case has been going on a long time, and the judge weighed more than just COVID. He made the right decision to protect the child’s health.”

The Sun Sentinel article is here.