Doctor holding a syringe

It seems like the trends are most assuredly against unvaccinated citizens in our courts. Employer-related Covid-19 vaccine mandates are increasingly being upheld by the courts, and thus far, the U.S. Supreme Court has declined to intervene.

History of Pro-Covid-19 Vaccine Decisions

Unsurprisingly, the family law bench has similarly been hostile to anti-vaccine parents. Earlier this year, our blog discussed the Crouch1In re: Marriage of Crouch, 2021 COA 3. case, where, despite the trial court finding that a parent’s “failure to vaccinate endangers the health of the children”, the judge then deferred to the parent’s religious views to deny the father’s request for an order allowing him to vaccinate the children. The Court of Appeals reversed the higher legal standard applied by the trial court to overcome the mother’s religious beliefs, and said that endangerment was enough to grant the father’s relief.

In September, we wrote about an Illinois case where an anti-vax mother briefly lost child custody due to her stance on vaccinations, only for the decision to be reversed on a technicality. (A hearing on the merits is still pending, with no updates as of the date of this blog).

Now, an anti-vaccine parent has lost again, this time in New York. Just three weeks ago, a judge in New York County makes clear from the start that the court favored vaccines and slammed “conspiracy theories” pushing Covid-19 vaccine misinformation:

Throughout most of modern medical history, the advent of a vaccine was almost universally embraced as a means of protecting ourselves and our children from deadly or debilitating disease. In my lifetime, I need only think of how polio was eradicated in this country as a result of the vaccine first developed by Jonas Salk, with other diseases, such as measles, rubella, and diphtheria, having been similarly eliminated.

Then came COVID-19. Fortunately, most people, heeding expert medical opinion, have availed themselves of vaccines that promise not only to protect them and others from the ravages of COVID-19, but ultimately to completely vanquish the virus. Unfortunately, and to my mind, incomprehensibly, a sizeable minority, seizing upon misinformation, conspiracy theories, and muddled notions of “individual liberty,” have refused all entreaties to be vaccinated.

C.B.2C.B v. D.B., Supreme Court New York County, decided 107/2021

The specific issue was whether the mother, who temporarily had primary custody over the parties’ 3 y.o. daughter, could condition the father’s access to the child upon his being vaccinated, or submitting to a Covid-19 testing regime. Note that while the father had other problems as well (the opinion mentions substance abuse and mental health issues), the specific subject of the opinion was his lack of a Coronavirus vaccine.

The court considered an unvaccinated parent to be a danger to the child:

Parents Loses Child Custody over Covid-19 Vaccine

Here, in-person parental access by defendant is not in the child’s best interests, and there are exceptional circumstances that support its suspension. The danger of voluntarily remaining unvaccinated during access with a child while the COVID-19 virus remains a threat to children’s health and safety cannot be understated. Although some children infected with the virus experience mild symptoms, others are subject to serious illness and long-term health effects. 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.

C.B.3C.B v. D.B., Supreme Court New York County, decided 107/2021

The court rejected the father’s evidence as to his medical and religious objections to the Covid-19 vaccine, holding that because he had the option of testing in lieu of the vaccine, such evidence was immaterial.

Trend Against Anti-Vaccine Parents

The case has now hit the media, but as of the date of this blog, there have been no updates, including word on whether the father intends to appeal. But the trend in recent cases is unmistakable – anti-vaccine parents not only are likely to lose a fight to prevent their children from being vaccinated, and now face potential adverse custody determinations if they themselves choose not to get vaccinated.

Thus far, there have been no reported cases in Colorado where a parent has lost child custody due to his/her anti-vaccine stance. But as Covid-19 litigation filters through the courts, it’s only a matter of time until we see judges consider this thorny issue. And with with the FDA just approving Coronavirus vaccines for children under age 12, we can probably expect more battles over vaccinating children.

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