The U.S. Food and Drug Administration approved Pfizer’s COVID-19 vaccine for children ages 5 to 11 on Oct. 29, opening the door for parents who wish to vaccinate their children against COVID-19. Riker, Danzig, Scherer, Hyland & Perretti family law group chair Allen Scazafabo Jr. said the move also opened the door for legal matters in family court between parents with ideological differences regarding the vaccine. He’s fielded calls from several clients since the FDA’s approval and predicts that child vaccination will be the “next big thing” in child custody cases.
“In a harmonious marriage, spouses might disagree philosophically on certain things. They chuckle and they embrace each other’s differences, but they come to a common ground. But now, when you’re enemies, or there is acrimony, those differences become fertile ground for rally cries. The level of care is heightened,” Scazafabo said.
The Kaiser Family Foundation COVID-19 Vaccine Monitor reported in late October that approximately 3 in 10 parents of 5- to 11-year-olds were eager to vaccinate their children upon authorization. Four in 10 said they would wait to see how the vaccine was working out for others, and 3 in 10 said they “definitely will not get” the COVID-19 vaccine for their 5- to 11-year-olds or their 12- to 17-year-olds.
“The funny thing there’s no real right or wrong answer because the science is changing and evolving. Dr. Fauci has changed his position [on COVID-19 related protocols] numerous times. There may be some fault there, but it may be some element of him evolving with everyone else,” Scazafabo said. “You’re finding that now in family law cases. Just like if you’re in a bar with 20 people, you’d find 10 who are for vaccinations in children and 10 who aren’t. Go on Facebook and you’ll see 10 of your friends putting up memes on vaccines and masks, and 10 of them pro-vaccine and pro-mask. You see that with parents too. It’s the same thing. You see it in the representative sample of society.”
CSG Law member and family law practice group leader Tremain Stanley said that she’s also seen the to-vax-or-not-to-vax issue come up between separated and divorced parents. In some cases, such as where one parent lives in New Jersey and one lives across the river in mandate-laden New York City, parents don’t have much room to oppose vaccination for their child, even if they want to. If their child participates in team sports, many places require proof of vaccine to play.
“The parents got on the same page about what to do for the child because they weren’t the ones who really had the choice. In a lot of circumstances, there really isn’t a choice given to parents,” Stanley said.
“What’s also come up is a lot of parents are upset if the child’s been vaccinated [with only the other parent’s consent], but there’s very little you can do after the fact—and you’re explaining this to a judge who has been told they have to be vaccinated to come to work.”
Ultimately, in “almost every scenario” she’s handled where parents have disagreed on whether to vaccinate their child against COVID-19 since it was approved for kids 12 to 17 over the summer, the child has eventually gotten vaccinated, she said.
Scazafabo projects that when courts make a decision on whether a child will be vaccinated or not, the court’s decision making “will evolve in lock step with the decisions being made in the mainstream world.” Acceptance of the vaccine has climbed since its release in the spring.
“Generally, courts look at reasonableness and unreasonableness. It doesn’t mean your opinion is wrong, it’s looking at the reasonable standard. Unfortunately, the reasonable standard is the popular standard.,” he said. “With [resistance to] the polio vaccine, a court would order that you’re being unreasonable and your child is getting the polio vaccine. With the COVID vaccine, the question is, is it widely accepted? No. Is it widely rejected? No. The needle is moving in the accepted direction, but I think it’s still moving. However, 50 years ago we might be talking about the same thing [for the polio vaccine].”
On this issue and others, parents opting to bring the issue to court are challenged by a backlog in the family court system, including an uptick in domestic violence proceedings.
“If you brought this issue to a court, you wouldn’t have much luck. It would have to be an emergency; and to [be defined as an] emergency, you have to have immediate irreparable harm. What we’ve noticed in the age of COVID is it being very difficult for litigants to get their issues addressed in front of the courts, which turns a lot of people to mediation or other forms of dispute resolution,” Stanley said.
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