There are many new legal issues arising in the family law arena as a result of COVID. In particular, whether to have the children vaccinated, and other issues relating to vaccination, are popping up all over the country. There is not a lot of law on the issue right now since it’s new. However, by way of example, here’s what happened in New York, which could potentially influence what happens elsewhere. It is important to note the specific circumstances of this case and the fact that it was in another state (which means New Jersey is not required to follow it).
There was a recent family law case in New York City where a Judge was asked to determine “…whether the plaintiff-mother, who has de facto custody of the child and is fully responsible for her care and upbringing, can condition the defendant-father's access with the child, which is limited and supervised, on defendant and his supervisor being vaccinated, or at the very least, submitting to a testing regimen prior to each of the access periods.” C.B v. D.B., 2021 NY Slip Op 21268, decided on October 7, 2021. The answer in this case was YES.
The judge made an interesting argument. Since children below the age of 5 years old are unable to receive the vaccine, they are dependent on the adults around them to keep them safe. The Judge stated, “Children under the age of 12 have not yet been approved to receive COVID-19 vaccines, so they are dependent upon the vaccination and health status of the adults around them. The danger extends beyond this child and includes a risk of serious infection to any person with whom the child comes into contact, including plaintiff, the child's classmates, and their families.” Id. So basically, this Judge feels that everyone who comes into contact with the child has a responsibility to be vaccinated. While this Judge’s opinion reaches outside of his purview and cannot be enforced against classmates and caregivers, many people share his opinion.
The Judge in this case also briefly touches on the father’s right not to receive the vaccine, asking the question “What matters more to each of them, his or her own interests or those of their child?” In this case the Judge feels the best interests of the child override the rights of the father who does not want to obtain the vaccine nor does he want to submit to COVID testing each time he sees his child. The Judge stated he felt these conditions were reasonable to protect the health, safety and well-being of the child and suspended the father’s visitation. He continued to allow liberal phone and virtual contact with the child. It is important to note here, this child did not have any unusual health conditions.
If this case indicates the trend moving forward, it begs the question, can this case be applied to other vaccines? Will parents have to prove their vaccination status in order to see their children? It’s important to note, this case is a New York City case which means it does not apply in New Jersey, but this issue will continue to pop up in future cases around the country. It remains to be seen how each state will handle these issues.