It is in the best interests of a three-year-old daughter for the father and anyone regularly supervising his access to be vaccinated against COVID-19 or else undergo regular testing. So held New York County Supreme Court Justice Matthew F. Cooper in his October 7, 2021 opinion in C.B. v. D.B, directing that the father’s in-person parental access with the child be suspended until such time as he did so.
The Court noted that historically vaccines almost universally embraced as a means of protecting ourselves and our children from deadly or debilitating disease. With Covid-19, most people, heeding expert medical opinion, have availed themselves of vaccines that promise not only to protect them and others from the ravages of the disease, but ultimately to completely vanquish the virus. Unfortunately, for Justice Cooper, a sizeable minority, incomprehensibly seizing upon misinformation, conspiracy theories, and muddled notions of “individual liberty,” have refused all entreaties to be vaccinated.
In this divorce action, the issue was not one of whether the child should be vaccinated; she is still too young to receive any of the vaccines. Nor was it one of whether the Court could require an adult to be vaccinated; to do so would stretch the authority of a matrimonial court to unprecedented lengths.
Here, the parties were married in 2015, and their child, a daughter, was born in 2018. The parties’ high-conflict divorce action was commenced by the wife in 2019. Based upon the wife’s allegations of the husband’s history of substance abuse and untreated mental health issues, and significant periods where he had not seen the child at all, Justice Cooper directed that the husband have daytime access every other weekend visitation, but supervised, first only by Comprehensive Family Services (CFS), but later by his parents.
Upon a September 2, 2021 emergency oral application (and later a formal motion) by the wife, in which the Guardian ad Litem (GAL) joined, Justice Cooper issued a Temporary Restraining Order (TRO) suspending the husband’s in-person access on an interim basis until he was vaccinated against Covid.
At oral argument on September 15, 2021, both the wife and the GAL stipulated that in lieu of showing proof of his being vaccinated, they would accept the husband’s agreement to a regular protocol of COVID-19 testing as a condition for the resumption of in-person parenting time. The husband refused. Justice Cooper amended the TRO to provide that the husband’s in-person access with the child would remain suspended until he and any approved supervisor either received a first vaccine dose or submitted to a testing regimen that included a PCR test once per week and an antigen “rapid” test within 24 hours of any in-person visit.
Justice Cooper held that in-person access by the husband was is not in the child’s best interests; there were exceptional circumstances that supported its suspension.
Justice Cooper stated that 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 could not be understated. The danger extended beyond this child and includes a risk of serious infection to any person with whom the child comes into contact, including the wife, the child’s classmates, and their families.
The widespread availability of three different no-cost COVID-19 vaccines, with their continued, proven efficacy in preventing the spread of the virus and the development of serious symptoms in those who contract it, has resulted in the expectation that one must be vaccinated in order 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 otherwise involved in any school activity all be vaccinated.
While the husband professed to love his daughter with all his being, he adamantly refused to do what his daughter’s schoolmates’ parents have all been required to do — be vaccinated.
The husband initially advised the Court that because he already had COVID-19, he believed he carried sufficient antibodies to the virus. He asserted he would consult with his doctor and provide expert medical opinion as to if and when he should receive the vaccine. However, the husband apparently abandoned this defense.
Instead, he argued that his “religious beliefs as a Roman Catholic” precluded him from receiving the vaccine. The justification rang hollow to the Court given that Pope Francis is vaccinated and has encouraged Catholics everywhere to be vaccinated for “the common good.” Moreover, the Court stated that the husband’s citizenship rights to be free from unreasonable intrusions were not absolute, but were subject to his duty as a citizen to other citizens and his duty as a parent to his child.
Justice Cooper noted that particularly in light of his rejection of the alternative testing protocol, unless the wife (who was vaccinated) also agreed to be tested, was motivated by a desire to burden the wife as opposed to a commitment to keeping his child safe.
The Court held that the mother, who had de facto custody of the child and is fully responsible for her care and upbringing, could condition the father’s access with the child, which was limited and supervised, on the father and his supervisor being vaccinated, or at the very least, submitting to a testing regimen prior to each of the access periods.
Evan Schein and Samantha Cooper, of Berkman Bottger Newman & Schein, LLP, of Manhattan, represented wife. Lloyd Rosen, of Wisselman, Harounian & Associates, P.C., of Carle Place, represented the husband. Karen B. Rosenthal, of Bender & Rosenthal, LLP, of Manhattan, served as Guardian ad litem for the child.