Judges Order Parents to Vaccinate or Vacate Visitation Rights – Where do we Draw the Line?

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Tom Lemons, Legal Correspondent

NATIONAL – The novel Coronavirus pandemic has wreaked havoc on the United States and just about every country around the world. Making matters worse, politicians, news media, and social media have twisted the facts so much that no one really knows who to trust or how to protect themselves. Although children are less likely to experience serious illness or death, the number of court related family disputes involving unvaccinated parents has risen, and some judges are ordering parents to vaccinate or vacate their visitation rights.

According to the most recent Centers for Disease Control vaccination data, about 65.6% of the total U.S. population has received at least one dose of vaccine. 76.8% of children between the ages of 12 and 17 have also received the vaccine. Children under 12 are not authorized to receive a COVID-19 vaccination at this time and that’s making some parents concerned for the safety of their children.

Family courts around the country are seeing an increase in cases where one parent is refusing to allow child visitation unless the other parent agrees to get vaccinated for COVID-19. The New York Post recently published a story out of Manhattan, where a matrimonial justice suspended a father’s visitation rights with his 3-year-old daughter until he agrees to get vaccinated. Alternatively, the father has the option of presenting an PCR test (Polymerase Chain Reaction) and an Antigen test, which determines whether he has an active COVID-19 infection every two weeks or before he is in contact with his daughter.

Justice Matthew Cooper told the New York Post, “Here, in-person parental access by defendant is not in the child’s best interests, and there are exceptional circumstances that support its suspension,” Matthews continues, “The dangers of voluntarily remaining unvaccinated during access with a child while the COVID-19 virus remains a threat to children’s health and safety cannot be understated,”

The father’s attorney told the Post that the judge, “set a dangerous and unjustified precedent that isn’t based on science.” He goes on to say, “My client is not a conspiracy theorist… He has concerns about the vaccine. He’s heard about side effects. He once had a bad reaction to a flu vaccine.” He continues, “It is an unreasonable intrusion on his rights as an American citizen,”

Adding insult to injury, Justice Cooper would not even grant the father’s motion for a full hearing to allow both parties to present the facts of the case.

Ayo & Iken attorney Howard Ellzey says this has become more of a political issue. “There will be other cases relating to this same issue not about a child’s best interests, but a political battle to allow judicial abuse to deprive parents of their rights to raise their own child and make health care decisions of born people.”

Attorney Jason Coupal, also of the Ayo & Iken Law firm agrees with the judge’s decision and says, “I applaud the trial judge for protecting the child.  Whatever “arguments” justify an adult’s decision to refuse a vaccine, children should not be made pawns in a battle over their parents’ political/social views.” Coupal continues, “When the parents are unable to act in the best interests of their children, a trial court has to step in and make a decision.  In this case, the Court appropriately did so.”

Mr. Coupal represented a mother earlier this year, whose child was severely immunocompromised and ordered to remain indoors and away from anyone who did not take extreme precautions. The child’s father claimed to be wearing a mask in public, but a private investigator presented evidence to a judge that he was disobeying doctor’s recommendations. The judge then ordered the father take the necessary precautions if he wanted to continue visitation with his child. That case never made it to trial, due to both parties exhausting their ability to pay for legal representation.

Ayo & Iken attorney Ernesto Cespedes is currently negotiating similar cases with separate clients out of our South Florida office. Cespedes explains that one of his clients is trying to prevent the father of a child in common with the mother from visiting with the father until he is fully vaccinated. The mother alleges that the child suffers from neurological and developmental issues that puts their child at risk, if exposed to the Coronavirus. That case is still in the mediation phase and has not yet become an issue for a judge to rule on. Cespedes also has a case involving a couple still residing together with a child, and says if not resolved amicably, it could be presented to a judge. In that case, both parents are vaccinated but the father is vehemently opposed to their teenage child from receiving the COVID-19 vaccination. He argues that children and young adults are at greater risk of heart damage from receiving the vaccination than if they were infected with the virus. According to Cespedes, that would have been a valid argument until the Delta variant entered the picture and is now creating greater risk to all ages, including young adults and children.

Attorney Cespedes says these cases are comparable to those related to religious conflicts. He believes parents should ignore social media and even mainstream media publications pertaining to COVID-19 information, and only depend on statements published by the Centers for Disease Control.

The definition of the “Novel” Coronavirus is just that – new – never seen before. So, in just two years after the onset of the COVID-19 pandemic, should family law judges have the ultimate say in whether parents must be vaccinated to visit their children, or does that trample on Constitutional boundaries?

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