COVID-19 Continues to Raise New Issues in Family Law

By October 22, 2021COVID-19, Family Law
COVID-19 vaccine

Throughout most modern medical history, a vaccine was usually viewed as a means of protecting ourselves and our children from a myriad of illnesses and diseases.

And then came COVID-19.  While many people, heeding expert medical opinion, have availed themselves of vaccines that promise to protect them and others from COVID-19, there remains a sizable number of people, who have refused to be vaccinated.

New York State Judge, Matthew Cooper, faced a set of facts and circumstances as a result of COVID-19, which had never been put before him to rule on.

A family was involved in an ongoing divorce case, with their three-year-old child, and the issue of COVID-19 vaccination faced Judge Cooper.

The issue was whether the Mother (who has de facto custody of the child and is fully responsible for her care and upbringing), can condition the Father’s access with the child, (which was already limited and supervised), on Father and his supervisor being vaccinated, or at the very least, submitting to a testing regimen prior to each of the access periods.

Father had a history of substance abuse and untreated mental health issues and had gone significant periods without seeing the child at all during the marriage.  Father now sought to have visits with the child, subject to supervision.  Judge Cooper, looking out for the child’s safety and well-being while in Father’s care, directed that Father’s parental access be supervised by an independent agency.   This Order was later modified to permit Father’s parents to serve as the supervisors.

Mother and the Guardian ad Litem made an emergency oral application for Father and any supervisor utilized for Father’s visitation to be vaccinated against COVID-19.  Judge Cooper issued a Temporary Restraining Order (TRO) suspending Father’s in-person visits on an interim basis until he was vaccinated.  Two weeks later, Mother and the GAL stipulated that, in lieu of Father showing proof of his being vaccinated, they would accept his agreeing to a regular protocol of COVID-19 testing as a condition for the resumption of in-person parenting time. Father refused.

Following the argument, Judge Cooper continued the TRO but amended it to provide that Father’s in-person visits with the child would remain suspended until he and any approved supervisor either received a first dose of a COVID-19 vaccine or submitted to a COVID-19 testing regimen that included a PCR test once per week and a COVID-19 antigen test (also known as a “rapid test”) within 24 hours of any in-person visit. As with the original TRO, Father was afforded liberal virtual and telephone access with the child.

It is well-established that there is a “rebuttable presumption that visitation by a noncustodial parent is in the child’s best interest and should be denied only in exceptional circumstances” where “compelling reasons and substantial evidence show that visitation would be detrimental to the child” or is otherwise “inimical to the welfare of the child.” Further, “[t]he paramount concern when making a parental access determination is the best interests of the child, under the totality of the circumstances.”

Judge Cooper determined that in-person visits by Father were not in the child’s best interests, and exceptional circumstances supported its suspension. The danger of voluntarily remaining unvaccinated remains a threat to the child’s health and safety. While children under the age of twelve have not yet been approved to receive COVID-19 vaccines, they are dependent upon the vaccination and health status of the adults around them. 

The widespread availability of COVID-19 vaccines, with their proven efficacy in preventing the spread of the virus and the development of serious, has resulted in the expectation that one must be vaccinated to participate meaningfully in everyday society. 

Most relevant to this case, the child’s preschool requires that teachers, staff, and any parent who participates in pick-ups or drop-offs or is involved in any school activity be vaccinated.  Father professed to love his daughter with all his being and asserts that he wants nothing more than to play an active and meaningful role in her life.  Yet, Father adamantly refuses to do what his daughter’s schoolmates’ parents have all been required to do — be vaccinated.

In response to Mother’s emergency oral application, Father at first stated that because he already had COVID-19, he believed he carries sufficient antibodies to the virus; however, he abandoned that argument and adopted the position that his “religious beliefs” precluded him from receiving the vaccine. Father later sought to depict any vaccination requirement as an unreasonable intrusion on his rights as an American citizen. 

Father was offered an alternative to vaccination – submit to regular COVID-19 testing. When presented with this option, he rejected it outright unless the Mother was subject to the same testing regimen. Given that Mother is fully vaccinated, Father’s ultimatum was motivated by a desire to burden Mother as opposed to keeping his child safe.

In the final analysis, the fundamental question in this dispute between the child’s two parents is this: What matters more to each of them, his or her own interests or those of their child? Based upon this and the aforementioned rationale, Judge Cooper entered Mother and GAL’s motion suspending Father’s in-person visitation with the child until such time as he complies with the Court Order.

What do you think? What would you do in these circumstances if this was your child?

Should you need the advice of a divorce or family law attorney or have questions or concerns about your situation, know that we are here to help and discuss those issues with you.