Insight

Inoculation Disputation

Vaccine uptake has become one of the most contentious issues in American life. Divorced parents who disagree about it are creating a welter of new custody cases in family court—and precedent is scarce.

Divorced Parents Disagree on Child Vaccine
JS

Justin Smulison

December 20, 2021 06:04 AM

The pandemic has permeated just about every facet of life over the last two years, and the nation’s courts are no exception. While health, insurance and employment law would seem to be the likeliest fodder for COVID-19-related lawsuits, family courts are also hearing cases that focus on the vaccination status of divorced parents and their children.

Coronavirus law has not moved as quickly as coronavirus science, of course, a predicament family lawyers have had to adapt to. Now that the Food and Drug Administration has approved vaccines for minors as young as five, parents who share custody but disagree about COVID-19 treatments are lawyering up anew.

How might these once unfathomable scenarios shape the family-law landscape going forward? Attorneys from across the United States discussed their recent experiences regarding vaccinations and custody to lend some perspective to this increasingly common situation.

When Parents Eschew Vaccination

Adults are within their rights not to get vaccinated. However, parents who cannot or will not do so might hinder their own custody case, because their former spouse may raise the matter before a judge.

Heather King, a managing shareholder at KoonsFuller, P.C., who was a 2022 Best Lawyers® “Lawyer of the Year” honoree for Family Law in Dallas/Fort Worth, says a court’s intervention will depend largely on the venue or county. “Such intervention, if any, would likely be restricting or limiting the parent’s access to the child until or unless the parent modifies his or her behavior.”

This past October, that scenario played out when a judge in Manhattan suspended a father’s visitation rights with his three-year-old daughter. The father had already had COVID-19; the judge stipulated that he would need to get vaccinated or agree to weekly testing to have his rights reinstated. The father agreed to testing, but his lawyer told reporters he didn’t believe it was a long-term solution.

Interventions don’t always last, either. In August, a mother already in a custody battle with her ex-husband briefly lost the rights to see her son when she could not show proof of vaccination. Although her doctor had advised her not to get the shot because of prior reactions to vaccines, a Chicago judge suspended her parenting time until she could show proof of inoculation—an order the same judge later rescinded.

Donald C. Schiller, a senior partner at Schiller DuCanto & Fleck—a 2009 Best Lawyers “Lawyer of the Year” award winner in Chicago for Family Law and a member of Best Lawyers’ advisory board—observes that because this area of the law is new and there are no appellate decisions to serve as precedent, courts are encouraging parents to find common ground.

“I think the courts are reluctant to some degree and might not want to take charge in some instances,” Schiller says. “They may be criticized if a medical tragedy happens, and the judge’s ruling is the cause. So, they try very hard to get people to come to a conclusion through persuasion. And I think most of the persuasive initiatives are in favor of the vaccinations.”

When Parents Disagree About Vaccinating Their Children

The legal waters get even choppier when it comes to the health and vaccination status of kids, particularly when the parents are split on the topic. So much depends on the terms of the divorce and the parenting plan, which lays out who gets to make which decisions.

“Children are obviously precious to their parents,” Schiller says. “And some parents have a sense that they owe it to their children to fight for their beliefs. So, these things sometimes do get taken to issue.”

Bari Weinberger, of Weinberger Divorce & Family Law Group in New Jersey, urges parents with shared legal custody to try to work through their differences with input from the child’s pediatrician or fact sheets from the federal Centers for Disease Control and Prevention. “If needed,” she adds, “the objecting parent could request mediation to work out a solution or go to court if a compromise cannot be reached.”

As co-parents drift apart, so might their views on vaccinations. Weinberger offers a scenario in which one parent has sole legal custody and has since changed his or her beliefs and is now “vehemently anti-vaccine.”

“The courts could view this as a substantial change in circumstances that places the child at risk,” she says. “[Courts] may consider a motion to modify legal custody from sole to shared or make other decisions.”

How Family Lawyers Can Prepare for Jab-Related Contests

While there is some federal guidance from legislation such as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which addresses jurisdictional issues as they relate to vaccines, there are no ironclad family-law precedents governing vaccinations amid a global pandemic.

To ensure the best representation for their clients, KoonsFuller’s Heather King says lawyers can strategize by researching their venue and the presiding judges. “Understand the likely outcome in the venue or county where the case would be located,” she says. “Texas judges, for example, have a significant amount of discretion in their decision-making as related to children, and their personal opinions or those of the community may [be] a factor. They are also elected officials, so politics may play a role. Advise your client of the risk that the other parent may be awarded a parental right to the exclusion of your client, and that a parent’s access to the child may be affected.”

As Schiller’s firm took on more COVID-19-related cases, a top priority was developing a unified approach toward vaccination. His management philosophy led him to schedule staff idea sessions and look at courts’ track records to establish a clear direction. “We have 46 lawyers, and all brainstorm together to take positions that are legally sound,” he says. “On the few cases my office has been involved in where judges had to make a decision, it’s been in favor of the vaccination. That is in line with our own position, which also advocates for vaccination.”

Long-Term Outlook

The impact of COVID-19 on family law is still in its infancy, but lawyers clearly need to prepare for anything. Parents’ decisions for themselves might have a ripple effect on their personal or professional lives, which might eventually influence their health, finances and family dynamic.

“Let’s say the parent had a job that required the vaccine, and the parent refused it and was then terminated from their position,” Weinberger says. “The parent now has a changed circumstance of income loss and possibly the impending loss of the family’s health insurance. Can the parent go to the courts and request support modifications based on this, or would the courts say that income loss based on refusing the vaccine was avoidable and thus reject the request? These are the types of cases we can anticipate.”

COVID-19 remained a global public-health emergency throughout 2021, and health experts indicate it will continue to reshape life as we know it for years. Even if a parent or child manages to avoid infection, the threat of exposure alone can trigger a variety of legal actions and consequences among divorced parents.

“Given everything we’ve learned since March 2020, we now know that as family-law attorneys, we need to be adaptable to our clients’ needs in the moment and also take a long-term view of being prepared for any level of emergency,” Weinberger says. “With COVID-19 predicted to be a part of our lives for the foreseeable future, helping divorced parents navigate these issues will remain a key part of our job.”

Justin Smulison is a professional writer who regularly contributes to Best Lawyers. He was previously a reporter for the New York Law Journal and also led content and production for the Custom Projects Group at ALM Media. In addition to his various credited and uncredited writing projects, he has developed global audiences hosting and producing podcasts and audio interviews for professional organizations and music sites. JustinSmulison.contently.com

Related Articles

Announcing the 2022 Best Lawyers: Family Law Publication


by Best Lawyers

Featuring the top legal talent in Family Law and Trusts & Estates.

Announcing Best Lawyers Family Law 2022

Fake Vaccination Card Crackdowns Impact Criminal Law


by Justin Smulison

Those who are making, selling and buying fake COVID-19 vaccine cards are facing federal and state charges.

Fake Vaccine Cards Impact Criminal Law

Can Employers Legally Require Their Employees to Get a COVID-19 Vaccine?


by Candace E. Johnson

With the COVID-19 vaccine more widely available now, many employers are asking if they can require employees to receive the vaccine and what risks are involved in doing so.

Can Employers Legally Require Vaccines?

With Reservations


by Justin Smulison

Is vaccine liability on the menu for restaurant owners in 2021?

Vaccine Liability for Restaurant Owners

A Balancing Act


by Joseph Milizio

New York State recently passed a landmark law that expands LGBTQ couples’ ability to start a family while protecting surrogates’ rights.

Surrogacy Rights for LGBTQ Couples

Fostering Acceptance


by Cassandra Biron

Those looking to be a foster or adoptive parent for LGBTQ youth must understand which kinds of support are most beneficial to parent and child alike. Happily, resources are now more widely available than ever.  

Resources for Fostering LGBTQ Youth

It’s All Relative


by Paula Birch Billingsley

Relative adoption can be infant adoption too; it happened to us and was quick, easy and inexpensive.

Private Adoption of A Relative’s Child

Crossing the Line


by Joseph Trotti

Divorce can be difficult, complicated and emotionally exhausting. Divorcing across state lines ups the jurisdictional complexity significantly.

Jurisdiction and Divorce Across State Lines

Trouble at Home


by Brittney M. Miller and James J. Vedder

Decisions about custody and parenting time after a separation or divorce are never simple. Family violence of any kind makes the process all the more complex—and the victim isn’t always the beneficiary.

How Domestic Violence Complicates Custody

WATCH: Best Lawyers Discusses COVID-19 & Family Law


by Best Lawyers

Three legal experts join the CEO of Best Lawyers to talk about problems that arise for family law during COVID-19.

COVID-19 Panel: Family Law

IN PARTNERSHIP

Coffey Burlington: A Legacy of Legal Excellence


by John Fields

In complex practice areas, such as business litigation and white-collar defense, Miami-based firm Coffey Burlington continues to set a standard of excellence.

Group of lawyers pose for law firm picture

"Lawyer of the Year"


Lawyer in suit poses for a headshot photo

Jeffrey A. Weissman

Family Law

Fort Lauderdale, FL

2024

"Lawyer of the Year"


Image of NorCal Lawyer of the Year honoree

Michèle M. Bissada

Family Law

San Jose, CA

2024

Is Family Law Mediation the Future of Conflict Resolution?


by Best Lawyers

In recent years, family law mediation has started to emerge as the preferred option over traditional forms of litigation, offering clients an amicable and efficient alternative of conflict resolution.

Silhouettes of family split into multiple sections

The Top 7 Things to Know Before Filing for Divorce


by Best Lawyers

Consulting with a qualified divorce attorney can help you understand your rights and obligations when filing for divorce. Here are 7 things you should know.

Two golden wedding bands with a crack down the middle

Does the Crystal Ball Predict a Fall?


by Kathleen Bernardo

In the post-pandemic climate, economists are making many predictions about what’s to come for the housing market. But one real estate lawyer with decades of experience says that this reset was crucial and not necessarily indicative of the doom and gloom we thought we were facing.

Multi-colored houses with purple backdrop

Trending Articles

Presenting The Best Lawyers in Australia™ 2025


by Best Lawyers

Best Lawyers is proud to present The Best Lawyers in Australia for 2025, marking the 17th consecutive year of Best Lawyers awards in Australia.

Australia flag over outline of country

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

Announcing The Best Lawyers in New Zealand™ 2025 Awards


by Best Lawyers

Best Lawyers is announcing the 16th edition of The Best Lawyers in New Zealand for 2025, including individual Best Lawyers and "Lawyer of the Year" awards.

New Zealand flag over image of country outline

Announcing The Best Lawyers in Japan™ 2025


by Best Lawyers

For a milestone 15th edition, Best Lawyers is proud to announce The Best Lawyers in Japan.

Japan flag over outline of country

The Best Lawyers in Singapore™ 2025 Edition


by Best Lawyers

For 2025, Best Lawyers presents the most esteemed awards for lawyers and law firms in Singapore.

Singapore flag over outline of country

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

How Much Is a Lawyer Consultation Fee?


by Best Lawyers

Best Lawyers breaks down the key differences between consultation and retainer fees when hiring an attorney, a crucial first step in the legal process.

Client consulting with lawyer wearing a suit

Presenting the 2024 Best Lawyers Employment and Workers’ Compensation Legal Guide


by Best Lawyers

The 2024 Best Lawyers Employment and Workers' Compensation Legal Guide provides exclusive access to all Best Lawyers awards in related practice areas. Read below and explore the legal guide.

Illustration of several men and women in shades of orange and teal

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

Attacked From All Sides: What Is Happening in the World of Restrictive Covenants?


by Christine Bestor Townsend

One employment lawyer explains how companies can navigate challenges of federal and state governmental scrutiny on restrictive covenant agreements.

Illustration of two men pulling on string with blue door between them

6 Ways a Lawyer Can Help You With Your Medical Malpractice Claim


by Adam Malone

If you believe you have a medical malpractice claim, contact an experienced medical malpractice lawyer. Read on to learn how they can help with your claim.

Doctor in white lab coat showing x-ray to patient in blue scrubs

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Georgia Proposes Law Requiring Parental Consent for Minors on Social Media


by Gregory Sirico

With data collection on the rise, Georgia lawmakers are currently petitioning for Senate Bill 351, which would require a user's age before social media use.

Teenager with hood on using phone as notifications pop up

Colorado Attorney General Calls For Cannabis Reclassification


by Gregory Sirico

In this article, Best Lawyers highlights a recent call to action by the Colorado state attorney general, requesting a full drug reclassification of cannabis.

Cannabis buds sitting on a checkerboard tabletop