Doctor trying to give vaccine to reluctant child.

Appellate courts nationwide have supported the pro-vaccine position in the overwhelming majority of reported child custody cases where decision-making over immunizations for children were at issue. In our Child Vaccines article in the Colorado Family Law Guide we discuss not just Colorado decisions, but have links to cases from other states addressing vaccine decision-making.

But now the New Jersey Appellate Division of Superior Court has issued an unpublished decision upholding an anti-vaccine order from the trial court. In Scott, the family law judge conducted an exhaustive hearing, ultimately denying the mother’s request to administer the Covid-19 vaccination to the parties’ three minor children.

Though the mother was the children’s primary parent, she shared custody with the children’s father, and the parents had joint decision-making on major decisions involving the children.

Covid-19 Vaccine Evidence in Trial Court

Doctor wearing mask to protect against Coronavirus.

During the 4-day hearing, the trial court heard from both parties, and testimony from two medical experts – the children’s pediatrician and a pediatric hospitalist – both of whom testified as to the efficacy of the Covid-19 vaccine and recommended the children be vaccinated.

Father’s evidence, by contrast, was simply his own testimony that while he was generally pro-vaccine, he opposed the Covid-19 vaccine because the mRNA vaccines were novel with unknown long-term side effects. Additionally, all children had previously contracted Coronavirus and recovered without issue.

The trial judge appeared most convinced by the fact that the mother took no other precautions to prevent Covid infection, and the children went to school and socialized with their friends without masks, and found that she failed to prove the vaccines were in the children’s best interests. The mother appealed, arguing that the judge ignored the weight of the evidence, guidance from the Centers for Disease Control, and the uncontroverted testimony from both experts.

Appeal – Defer to Trial Court “Best Interests” Findings

The appellate court started with a discussion of what the best interests standard means, and that when parents cannot agree, the family law judge is obligated to step in as a “tiebreaker.” But the court rejected the mother’s position that medical decisions required a variation of the best interests which the court called “medical best interests.”

In the end, there was no earth-shattering precedent from the decision (perhaps a reason why it was not published?) Instead, the court found that it is required to give “great deference” to the findings of the trial court, and in this case, the trial judge was also free to reject or accept expert testimony, and to decide the weight afforded to such testimony. And in this case,

“The trial judge explained his reasoning in declining to follow the recommendation of plaintiff’s experts as follows:

While [the experts] stated the vaccine is well-tested and safe, the [c]ourt recognizes the ages of the children and the fact that the vaccine is not mandatory is critical to this analysis.

[T]he experts did not go into depth in their testimony [to describe] how the vaccine works, potential side effects[,] or even how the research was conducted to develop the vaccine.

The judge’s ultimate assessment of the testimony was explained and supported by the record. We discern no abuse of discretion in either the credibility findings or the factual findings warranting our intervention.”


The Takeaway – Trend Against Vaccines?

While on its face, the Scott decision may appear to take an “anti-vax” position, it is really much more nuanced than that. The issue was not whether the appellate judges thought that vaccines were in the children’s best interests, but whether the trial judge, as the finder of fact, abused his discretion by rejecting the expert testimony and finding the vaccines were not in the children’s best interests.

So the real surprise is probably the trial judge, who appears to have rejected two medical experts in favor of a position which can be summed up as follows: “the kids have already survived Covid, so I don’t want to risk their health with an experimental vaccine.”

Having litigated medical issues before, I can say confidently that I have not seen family law judges in Colorado accept unfounded speculative harm over expert testimony, and as discussed in our vaccine article, courts throughout the United States consistently rule in favor of the pro-vaccine parent.

I don’t know that this decision has any lasting takeaway, other than that resistance to vaccines may not be futile, as your concerns may resonate with a particular judge despite medical evidence to the contrary. Moreover, I doubt an unpublished decision from another state would be tremendously helpful in a Colorado child custody case where judges not only lean pro-vaccine, but tend to listen to the advice of medical experts and the CDC.

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