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Vaccine Hesitancy and Child Custody in the Age of COVID-19

By June 15, 2021July 2nd, 2021No Comments

“My fear about vaccination is what will it do to my children” – Eric Clapton


Statistics don’t lie.  So far, the revolutionary vaccines rolled out by Pfizer, Moderna and other companies have protected hundreds of millions of adults against COVID-19, with only a handful of allegedly serious reported side effects.  Last month, the Food and Drug Administration cleared the Pfizer and BioNTech vaccines for use in children between the ages of 12 and 15.  Barring serious, unanticipated side effects that are unique to younger children, those younger than 12 will likely be cleared to be vaccinated by early 2022.  For parents who agree with each other that their children need to be vaccinated, it will be an easy and uncontroversial decision.  They will rush to protect their kids from such a deadly and virulent threat; at peace in the knowledge that the benefits vastly outweigh the potential costs.  

But not everyone sees it that way.  Some parents will disagree about the vaccine’s efficacy, and its safety.  MarketWatch reports that divorce lawyers nation-wide are bracing for deeply personal — and deeply pricey — parental disputes over COVID vaccination.  While some will no doubt cynically see vaccination opposition as an effective new weapon to attack their former partner on a point of settled law between the parties, some parents will, over sincerely held personal, religious or medical differences, genuinely and passionately disagree about whether their children should be vaccinated against the COVID-19 virus.  

Families who have lived together in relative harmony may find troubled waters ahead when their children become vaccine eligible.  Otherwise stable marriages and relationships may well buckle under pressure from this new conflict.  Some separated families co-existing in two households will face a new, painful battle in a custody fight they had long believed was resolved.  Parents at war with each other for years over child custody will have a new hand dealt to them, as they either rush to CVS to get their children the vaccine, or rush to court to block the other parent from getting the children vaccinated.  

A parent’s medical decisions are deeply personal and are often rooted in family tradition.  That said, people often disagree on medical choices, so these are not new issues for the courts.  Addressing conflict over medical decisions will not be new to the courts, but the sheer volume of litigants who will now run to court because they cannot agree will very much pose an unprecedented, new challenge.  

Since COVID began, I  have often been asked how the pandemic affects or changes a given established legal principle.  I like to tell my clients that the law, unfortunately, is not prospective.  It is reactive.  In other words, the law is not very good at answering the question “how does this completely new crisis affect my rights?”  It is very good at answering what rights you have as a result of the last crisis.  However, the last time this happened was over 100 years ago, in a very different world, and virtually no one alive then is still around to guide us.  As such, the law provides few answers.  But interparental conflict and vaccine hesitancy are not new, so it does provide some.

Today, let’s take a look at a fairly recent case that involved vaccine hesitancy from Louisiana’s First Circuit appellate court: Miller v. Dicherry (2018).  

Mr. Miller and Ms. Dicharry (her surname was misspelled in the case caption, so we are now stuck with it) were the unmarried parents of a minor child.  After their relationship ended in 2014, they were awarded joint custody of the child with Ms. Dicharry being awarded status as the primary domiciliary parent (or PDP).  

As these things often go, the status quo did not work for long.  By 2017, both parents were back in court asking to modify the previous order.  Specifically, Mr. Miller sought designation as the PDP, in order to wrest away from his former partner the unilateral right to make medical decisions for the child.  This request was based in part on Ms. Dicharry refusing to vaccinate the child, which she characterized as a “religious opposition.”  Evidently concerned that the mother’s refusal to vaccinate posed undue risk to the child’s health and safety, the court took the extraordinary step of stripping away only her right to make medical decisions, and gave that right to Mr. Miller while keeping Ms. Dicharry’s status as PDP otherwise intact (which is unusual, but, as I explained in an earlier post, the court is entirely within its rights to do}.

Constitutional questions don’t often arise in child custody cases.  But this was the judge’s lucky day, because Ms. Dicharry framed her opposition to vaccines as a religious belief entitled to First Amendment protection.  She argued that the court ordering that her child be vaccinated violated her sincerely held religious belief opposing vaccination, and therefore the First Amendment to the United States Constitution.

A novel approach, to be sure.  But would it work?

In the appellate court, Ms. Dicharry raised a fairly good point: she was the PDP, and the court notably did not change that.  It simply reassigned a small subsection of the decision-making rights to Mr. Miller, finding that doing so was in the best interest of the child.  But as Ms. Dicharry pointed out, as PDP, her decisions are already presumed to be in the child’s best interest, and the court did not find a material change in circumstance to change its earlier decree.  All other things being equal, she argued, there was no basis to reassign medical decision making authority from the mother to the father.  

Except, of course, all things were not equal. Although there is no indication she feared the vaccine would cause her child to become magnetized, we do not know the basis of Ms. Dicharry’s opposition to vaccinations.  However, vaccination wasn’t the only area where her views veered from standard medical practice.  She routinely ignored, rejected, railed against sound advice from the child’s medical providers, apparently leveling dire warnings at the staff that they would be sued over their treatment of her child.  It finally came to the point that her antics got her child discharged from the practice.  

Since the evidence was that Mr. Miller would never baselessly interfere with the sound advice of his child’s doctors over something he saw on Facebook, the court felt there was good cause to make that one minor change without otherwise disturbing Ms. Dicharry’s custodial rights.  In that context, it was not a hard to find that Mr. Miller overcame his burden, and proved he should be solely responsible in this one aspect.  Thus, in finding Mr. Miller was better entrusted with medical decisions, the court neatly avoided stepping in the vaccination question.  

And yet, it could not avoid that question entirely.  Ms. Dicharry argued that the First Amendment grants a parent the unilateral right to refuse routine immunization on religious grounds.  This question gets a little deeper into the weeds of constitutional law than I care to wade in this particular post.  But it suffices to say that even on its face, I am not at all convinced this argument has any merit.  

In any event, the court did not need to wrestle with that question. It was clear to the court, after Ms. Dicharry’s puzzlingly defensive testimony, that if she had sincere religious opposition to vaccinating her child, she wasn’t keen on sharing the basis of that belief; nor indeed, even what religion she claimed to adhere to.  The court therefore found that Ms. Dicharry’s “reluctance to have her child vaccinated arises from a personal, moral, or cultural feeling against vaccination for her minor child,” instead of a religious belief.  Personal, moral or cultural feelings are not religious beliefs.  Importantly, the court noted that Ms. Dicharry need not adhere to a particular religious sect to have a religious objection, but since philosophical or personal beliefs are not religion, the court did not need to address a moot (and far more touchy) constitutional issue. 

So where does that leave parents who cannot agree on immunizing their child against COVID?  This court did order the child vaccinated, because immunizations were, in this court’s opinion, in the child’s best interest.  That was in the hazy, salad days before COVID, when vaccinations presented much less of a question of existential import.  I find it hard to believe that in a pandemic that has killed hundreds of thousands of Americans, a court will find a reason to switch gears and find immunization is somehow not in a child’s best interest; barring the development of some horrific, unforeseen side effects after vaccines are approved for kids.  

So I think a vaccine hesitant parent can expect a high bar to clear, on the level that they will have to convince a court that they sincerely hold deeply sacred beliefs that trump scientific consensus that COVID immunizations are a public health necessity.  While courts are careful about trodding on religious expression, litigants should not expect a rubber stamp.  Instead, they can expect careful scrutiny of the sincerity of their beliefs, even before getting to the question of whether those beliefs supersede their child’s well being.   

Eventually, the courts will not be able to avoid the latter portion of that question.  It may take years, but the impact of COVID will reverberate for decades.  Even if it is beaten and becomes just a bad memory, I think the lingering aftershock of COVID is likely to cause religious protections enshrined in the First Amendment to take a back seat to the more immediate and visceral concerns over public health.  I say that fully aware of the great reverence the law has for protecting religious identity.  But we will have to wait and see.

In the meantime, if you have a question about your decision making rights in a child custody matter, you can and should speak today for free with a qualified family law attorney; one with the experience and knowledge to tell you about your rights and how to protect them.

Greg Nichols

Author Greg Nichols

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