Is resolving a disagreement between parents as to whether to vaccinate a child against Covid too “political” to be decided? Three recent decisions tackle this issue. The Court may shield itself from making the bottom-line decision by deciding which parent should decide.

Should deciding who will be the decision-maker be the rule when parents disagree; or should parents be able to turn to the courts for the answer to one question without changing how they will make decisions on other questions in the future?

In other contexts, judges have been tasked with making literal life-and-death decisions. On occasion, they must decide whether to override the parents’ decision to discontinue life-sustaining treatment of their terminally ill minor child. See, Matter of DH,  15 Misc. 3d 565, 834 N.Y.S.2d 623 (Sup. Ct. Nassau Co. 2007). In Matter of Matthew V. (Lynette G.), 59 Misc. 3d 288, 68 N.Y.S.3d 796 (Fam. Ct. Kings Co. 2017), the Court transferred decision-making authority from the mother of a 14-year-old child to the child services agency for the purpose of consenting to chemotherapy treatment to which the mother was opposed.

However, there seems to be a different approach to resolving parental conflicts because of the current political climate.

In a October 18, 2021 blog post, Dad’s Visits Conditioned on Covid Vaccination or Testing, Justice Matthew F. Cooper’s opinion in C.B. v. D.B, was discussed. There the father’s in-person parental access with the child was suspended until such time as he was vaccinated.

In Matter of A.L. v. V.T.L., 2022 N.Y. Misc. LEXIS 212, 2022 WL 201278 (Fam. Ct. Rockland Co. 1/24/2022), a father sought to prevent or postpone (until the child turned 18) the administration of a COVID-19 vaccine to his son. He asked the Court to modify the mother’s final decision-making authority to give the authority to him on this one issue. Family Court Judge Keith J. Cornell denied that request.

The parents shared joint legal custody under their 2015 divorce stipulation of settlement, but gave the mother final decision-making authority, subject to the father’s right to seek court intervention.

The Court found that the father’s stipulated right to seek court intervention eliminated the requirement that he establish a change in circumstances sufficient to modify the terms of the stipulation. Instead, the father was entitled to have a hearing to determine the best interests of the child was required on the disputed issue.

However, Judge Cornell did not decide whether it was in the best interests of the child to be vaccinated. Instead, the Court determined that the father failed to establish “that it would be in the best interest of the child to alter the mother’s final decision-making authority on medical issues or that any extraordinary circumstances existed that would necessitate altering the parties’ negotiated stipulation.”

The father offered no evidence that the mother had been “anything but a competent decision maker in the past.” So, Judge Cornell decided that the mother would retain her authority.

This Court declines to inject its own views on the wisdom of vaccinations for COVID into this proceeding.

The Court stated that it was “only concerned with determining the appropriate mechanism for decision-making in the child’s best interest. To that end, the Court must limit its inquiry to the Mother’s prior performance as the final decision-maker.”

The parents in B.S. v. A.S., 2021 N.Y. Misc. LEXIS 6556, 2021 WL 6069144 (Sup. Ct. Kings Co. December 21, 2021), shared joint custody under their 2018 divorce stipulation of settlement. Neither party had final decision-making authority.

Here, the parents presented their diametrically-opposed opinions about whether their 8- and 10-year-old daughters should be vaccinated. The mother filed an emergency application seeking the authority to vaccinate the children.

Supreme Court Justice Jeffrey S. Sunshine noted that despite the seriousness of the issue and the tenor of the debate, it must exercise judicial restraint when honoring the parties’ prior stipulations and the rights of the parents to raise their children. The Court declined to “become embroiled in the political-ideological arguments that divides these parties.”

It was noted that in 2020, the parties had modified their stipulation and agreed to comply with all New York State- and New York City-issued Covid-related guidelines. As part of the current application, the mother alleged that the father was not following those guidelines as to masking and social distancing. The father had refused himself to be vaccinated and did not obligate the children to wear masks outside NYC. Justice Sunshine categorically rejected any presupposition that the parties’ 2020 stipulation only required compliance with the guidelines when they were physically in New York City or State.

The parties’ 2018 stipulation of settlement required the use of a parenting coordinator to assist them in communicating with each other regarding the children’s health, education, well-being in welfare, and in making joint decisions for the children. On this application, the mother contended that the father had not complied with the requirement to use a parenting coordinator; the father contended that medical decisions were not in the parenting coordinator’s province.

The stipulation further provided that if after consulting with the coordinator, the parties were still unable to agree on a major decision, either party would be free to make an application to the Supreme Court for a determination of that issue.

Rather than make the decision for the parents, the Court held that this disagreement represented a change in circumstances that required a modification of the parties’ joint decision-making stipulation on the single issue of Covid vaccination. The mother had alleged a sufficient change of circumstances that demonstrated the need for change of custody to insure the best interests of the children.

Despite the seriousness of the issue and the tenor of the debate, it must exercise judicial restraint when honoring the parties’ prior stipulations and the rights of the parents to raise their children.

As a result, the Court scheduled an evidentiary hearing to address to limited issues: 1) whether the level of animosity on the issue of COVID had become such that either party has demonstrated an unwillingness or inability to communicate without animosity regarding the best interest of the children on the medical decision-making as to COVID issues; and 2) whether the father cooperated in complied with the 2020 so-ordered agreement to follow NYC and NYS guidelines.

The Court noted that neither of those questions required the testimony of COVID experts. Instead, the Court would hear from the parents and the children, themselves (and other witnesses, with the Court’s permission). The Court did not need to hear, at this time, any testimony as to the merits of either parties’ opinions as to the issue of COVID. That issue was not presently before the Court.

Finally, the court noted that after oral argument of the application, the parties’ 10-year-old daughter tested positive for COVID and was in quarantine with the father.

However, the question was not avoided in J.F. v. D.F., 74 Misc. 3d 175 (Sup. Ct. Monroe Co. December 3, 2021), 2021, N.Y. Misc. Lexis 6142, 2021 WL 5779901.

In that case, the parents, who shared decision-making, had approved vaccinations for their 17- and 19-year-old daughters. However, the father would not agree to the mother’s decision to vaccinate their 11-year-old daughter until it was made mandatory by the government.

At the hearing, the child’s pediatrician, in a conference call with the Court, concurred that the child would be best protected from COVID by vaccine, even though she was only 11 years old. However, the pediatrician admitted that the child could suffer short- and long-term side effects. The father wanted to wait and see what further research demonstrated on both the efficacy of the vaccine and the impact of both short and long-term side effects. The Attorney for the Child supported the request for the administration of the vaccine, and reported to the Court that the youngest daughter wanted to join her older sisters in the vaccine process

Justice Richard A. Dollinger pondered whether when faced with a disagreement between the parents over the necessity for a vaccine, it could intrude into the family unit and order the child vaccinated. The Court acknowledged that making a decision for someone else’s child was uncomfortable, but ultimately necessary.

Justice Dollinger was “unwilling to kick this can down the road.” Waiting for further research was “simply untenable, when the specter of killing or incapacitating diseases swirling in the environment surrounding this young girl.”

In reaching its conclusion, the Court declined “to jump into the world of vaccine debate and consider the evidence – pros and cons on the efficacy of either the Pfizer or other vaccines – from government websites or other sites. The vaccine and its effectiveness was not on trial before this Court.”

The Court, weighing the child’s best interest, could not “wait for the vaccine’s side effects or efficacy to be scientifically established beyond a reasonable doubt or even to the father’s satisfaction. The imminent risk of contracting the disease is too high and the consequences of acquiring it potentially too dire.”

The Court could not wait for the vaccine’s side effects or efficacy to be scientifically established beyond a reasonable doubt or even to the father’s satisfaction. The imminent risk of contracting the disease is too high and the consequences of acquiring it potentially too dire.

The mother was ordered “to schedule an immediate appointment for the child to be administered in age-appropriate vaccine from the pediatrician or her office staff as soon as possible.”

In A.L., the father represented himself. David Warren, of New City, represented the mother. Christopher Widholm, of the Legal Aid Society of Rockland Co., represented the child.

In B.S., Aimee L. Richter, and Michelle Spector, of Lee Anav Chung White Kim Ruger & Richter LLP, of Manhattan, represented the father. Margaret Brady, and Matthew G. Goodwin, of Brady Klein Weissman LLP, of Manhattan, represented the mother. Brad Nacht, of Brooklyn, served as Attorney for the Children.

In J.F., Richard G. Curtis, of Rochester, represented the mother. Seema Ali Rizzo, of Rochester, represented the father. Lisa B. Morris, of Rochester, served as Attorney for Children.