Vaccinations will likely become a hot topic in matters of divorced or separated parents in a post-pandemic world with vaccines now available to children ages 12 and up, and possible younger children in the future. Although not COVID-19 related, it’s pretty timely that an unpublished (non-precedential) decision was just issued regarding divorced parents who disputed whether their child should be vaccinated.

Briefly, in the matter of M.A. v. A.A., the Appellate Division affirmed the trial court’s decision awarding the plaintiff/father, in favor of vaccinations, sole authority to make vaccination decisions for the minor child, based largely on the best interests standard.  The defendant/mother, who opposed vaccinations, argued that the best interests standard should not have been applied because it does not outweigh her fundamental right to freedom of religion, in addition to other arguments.  In similar fashion to previous blogs that I have authored, credibility was key.  Given that the mother was not a credible witness with respect to her religious beliefs, or really about much of anything, her religion/freedom of religion arguments failed.  Had she been credible, would there be a different result? The decision is a long one, so bear with me.

FACTS

The parties married in 2005, had one child (Adele) born in 2013, separated in September 2015 and divorced in 2018.  During their marriage, they did not have  Adele vaccinated.  In June 2015, the parties submitted a letter to Adele’s pre-school asking that she be exempt from the vaccination requirement because of their religious beliefs in a strongly worded letter that quoted the Bible, and they submitted a similar letter post-divorce in August 2018 to Adele’s kindergarten,  The initial letter, which is similar to the Kindergarten letter, said:

Our child’s body is the Temple of God. Our family’s religious beliefs prohibit the injection of foreign substances into our bodies. To inject into our child any substance which would alter the state into which she was born would be to criticize our Lord and question His divine omnipotence. Our faith will not allow us to question our Lord and God, nor challenge His divine power.

Our personal religious beliefs include our obedience to God’s law, the Holy Bible, and we believe that we are responsible before God for the life and safety of our child, created by God.

Despite their strong letters pre- and post-divorce regarding vaccinations, the parties did not include language in their Marital Settlement Agreement (divorce agreement) about whether to vaccinate Adele and/or religious beliefs concerning Adele.  Rather, with pretty form language, they agreed to share joint legal custody of their child with neither parent designated as the Parent of Primary Residence.

The Appellate Division found particular importance in the following language: they “...further agree that their daughter’s best interest is paramount” and  they “...shall conduct themselves in a manner that shall be best for the interest, welfare, and happiness of [Adele].”

During the trial discussed below, the mother testified that the parties did not reference vaccinations in their agreement because they  agreed to not vaccinate Adele and the father had  prepared the above letters to the schools, for which she did not know the source of the language.

Following their divorce, Adele stepped on a rusty nail while with her father, who then brought her to the hospital where she was given a diptheria, tetanus and DTap vaccination.  Adele did not have an adverse reaction.  He made her mother aware of the vaccinations.

A few weeks later, the father unsuccessfully filed an emergent application seeking to prevent the mother from traveling with Adele to Bulgaria, claiming that she could not go because she did not have all of her vaccinations, which was denied as Adele had vacationed in Bulgaria before without vaccinations.

Upon their return, the father, without pre- or post-disclosure to the mother, brought Adele for the MMR vaccine.  A few days later, Adele developed a rash that her pediatrician diagnosed as being caused by something she touched – i.e.: unrelated to the vaccine.

Meanwhile, the day before Adele’s appointment with her pediatrician, the mother filed a Motion seeking sole custody of Adele and restraining the father from having further vaccines administered to Adele, claiming that the parties agreed to not vaccinate Adele and previously submitted religious exemption letters to Adele’s schools.  The father cross-moved for sole decision making authority on medical decisions for Adele or for a plenary (evidentiary) hearing on the issue.  He claimed that he supported vaccinations and that the mother’s objections were based on conspiracy theories rather than religion and, in fact, the mother is an Atheist.

TRIAL

The trial court held a three day trial, during which each party testified, along with an expert presented by the mother and Adele’s pediatrician.

The mother’s expert met with the mother and examined Adele, but he did not meet or speak with the father or Adele’s pediatrician, nor did he review her prior medical records or order any further testing.  The expert diagnosed the above rash as resulting from the vaccine, based solely on a picture, rather than an examination.  he expert testified that because Adele previously had an autoimmune condition, she is at risk for illness were she to receive additional vaccinations and, thus, she should not get another vaccine.  Rather, she should just contract whatever viral infection she may in the future.  However, he also testified about the great benefit of vaccines preventing many infectious diseases, or “dreaded diseases” per his direct quote, and that few people have adverse reactions.

On the other hand, the pediatrician testified that Adele’s autoimmune disease was no longer present as of September 2017, although at his earlier deposition he testified that she had a 3-5% greater risk to contract it.  He further testified that he had discussed vaccinations with the mother on two or three occasions and she never raised a religious objection.  The pediatrician cleared Adele to receive vaccinations.  Notably, like the above expert, the pediatrician testified to the benefits of vaccinations and few cases of adverse reactions.

The mother testified that her moral and religious views against vaccinations are intertwined and she has had such religious anti-vaccination views since she was a child; however, she did not seek religious exemption when she immigrated to the United States at age 20, when she went to college and she received breast implantation surgery in 2011 – prior to Adele’s birth but seemingly while she held such views per her own testimony.

On the other hand, the father testified that they never discussed vaccines until the mother was pregnant (note that they were married for about 8 years before Adele was born), that the mother was anti-vaccination and he obliged her, and the language in the above letters was suggested by a realtor they knew because it would be a sure way to have Adele attend her schools without vaccinations.  He also testified that he is Catholic and the mother is an Atheist.

As to best interests, the father testified that vaccines are in Adele’s best interests which is why he wants her vaccinated, and the mother testified that the father did not act in Adele’s best interests by getting her vaccinated without disclosing same.

DECISION

Close up of wooden gavel isolated on white background

Ultimately, the trial court awarded the father as limited medical guardian for immunization purposes only, and denied the mother’s request to restrain further vaccinations.

The trial court did not rely on either expert (the mother’s expert’s methodology was lacking and the pediatrician did not have the expertise about vaccine related issues), but for the fact that they both testified about the benefits of vaccinations and that most people are not adversely effected.  Using a best interests analysis, the benefits of the vaccine outweighed the risks and, thus, the order set forth above was entered.

Notably, the trial court found that the mother was not at all a credible witness – she was combative, changed her testimony and outright lied; while she claimed religious beliefs against vaccinations since childhood, her actions demonstrated otherwise. “The court concluded that its decision ‘results from [d]efendant’s shear [sic] lack of credibility.'”

Moreover, the trial court also addressed defendant’s sincerity as to her claimed religious exemption, required by Federal case law based on her claimed religious objection and, because the best interests analysis required the court to make a full fact finding, doing so included the mother’s claimed religious exemption that opened the door into whether same was sincere.  Given the mother’s lack of credibility, and failure to assert religious exemptions for vaccines on her own behalf, the court found that she was not sincere.

The Appellate Division upheld the trial court’s use of the best interests standard, and it’s conclusion based upon a best interests analysis.  The Appellate Division cited to the best interests/custody statute, N.J.S.A. 9:2-4, as authority for the court’s order.  Indeed, per section (c) of the statute,  although parents have equal rights to start, a court can order that one parent has sole custody or “[a]ny other custody arrangement as the court may determine to be in the best interests of the child.”

The Appellate Division disagreed with the mother’s claim that the trial court erred when reviewing the mother’s sincerity with respect to her religious exemption because doing so is precluded by statute, namely  N.J.S.A. 26:1A-9.1 ; however, as confirmed by the Appellate Division, this applies to schools only and not to the issue of parents with co-equal rights disputing whether to vaccinate their child.  In fact, the Appellate Division specifically separated the Department of Health memorandum, cited by the mother, suggesting that sincerity should not be tested for religious exemptions for school purposes, as compared to a best interests analysis when two parents with equal rights dispute vaccinations.  Moreover, the Appellate Division provided that the trial court resolved the conflict between the mother’s First Amendment Rights and freedom of religion by applying  the federal sincerity test and then the best interest standard.

Notably, the decision was also based on the fact that the parties agreed in their MSA that the child’s best interests are paramount.  In other words, their agreement provided for the best interests analysis in this case.  They did not provide for any other methodology to resolve disputes related to Adele.  Coupled with the mother’s lack of credibility, she didn’t stand a chance.  In fact, the Appellate Division stated: “The trial court’s order, appointing plaintiff as the sole parent for vaccination decisions, was rooted in its determination that defendant’s testimony lacked credibility.”

Takeaway

This case is long for a reason; there are a bunch of takeaways – from drafting of agreements to crafting arguments:

  • Be cognizant of your MSA language.  Most agreements recite the best interests of the child as part of the decision making for the ultimate custody/parenting time arrangement, and some cite to consideration of same for future decisions.  Here, the language was used to further support the appropriate best interests analysis.
  • Joint legal custody does not mean an absolute preclusion on one parent having sole decision making authority on issues related to the children in the future, even if limited as it was here.  Custody arrangements in New Jersey are never permanent; they are modifiable based upon substantial changed circumstances and in the best interests of the children.
  • Statutes/case law on religious exemptions does not apply, on point, to a child-related dispute between parents with co-equal rights.
  • Even if you think that you and your co-parent are on the same page about a topic, i.e.: vaccinations or religious upbringing, include language in your agreement referencing such decisions.  Parents, like anyone else, are allowed to change their mind and, absent an agreement otherwise, could seek to change course of a prior child-related decision.
  • Credibility is ALWAYS key.  Many of family law cases thrive on “he said/she said”.  The only want to get to the bottom of who is more likely to be telling the truth is to judge credibility.  Here, it won the day.

Lindsay A. Heller is a partner in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

 

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