I previously blogged on parenting time restrictions due to vaccination issues “No Vaccination, No Parenting Time“.  The issue hasn’t gone away and it won’t for some time.  The reality is that while the COVID-19 pandemic seems to develop rapidly (that old saying… the days are long but the years are fast), the law moves much more slowly.  To the extent that hearings are required to determine whether a parent/child should be vaccinated, it could be months between the initial motion filing and then the hearing, then more time for the decision, and then even more time for the appeal, which may then result in the law being solidified, changed or otherwise shape the issue for future cases.  In the meantime, new cases pop up in various jurisdictions that may guide how cases are dealt with across other states, including New Jersey.

In addition to my above blog, this issue is a hot topic of discussion.  It usually boils down to two options, in my opinion, including scheduling a plenary (evidentiary) hearing in which the Court takes testimony from medical experts, and/or even the child’s pediatrician, regarding the medically-related positions taken by each party.  This is because a letter from a doctor, or internet printout, is just hearsay.  I also discussed a potential alternative, which I did not expect to be accepted as swiftly by the trial courts, which is for the trial court to take judicial notice that the CDC recommends the vaccination (i.e.: the fact is so well known, that it can’t be denied or disputed; thus, the Court takes notice of it without testimony from someone from the CDC and relies on it as part of its fact findings).

Thus far, plenary hearings have been ordered as anticipated.  More recently, however, the judicial notice issue has come to light in a Maine case regarding vaccinations.  Although the matter is not about the COVID-19 vaccine, the issue is timely and reasoning can be applied to COVID-19 vaccine cases.

Specifically, in the matter of Seymour v. Seymour, a father appealed a judgment of the trial level in which the Court did not take judicial notice of vaccine information available on the CDC website, as well as alleging that “the court failed to prioritize the children’s safety of provide an explanation when it changed the contact schedule and allocated final decision making authority on education and medical matters” to the mother.

In a somewhat surprising decision, the Appellate Court agreed that the trial court abused its discretion by not taking judicial notice.  Less surprising is their agreement that the Appellate Court agreed that the trial court failed to adequately explain its modifications per the father’s argument.  This blog will address the judicial notice issue of the case.

In this case, the parties were recently divorced in 2018, and their children were born in 2014 and 2017.  They shared parental rights and responsibilities (i.e.: joint legal custody – joint decision making authority) and the mother was the parent of primary residence.  In April 2020, height of the pandemic, the husband sought to modify the divorce judgment when the mother objected to having their children vaccinated and had not arranged for either child to see a pediatrician or dentist, and objected to their son seeing an occupational therapist.  An interim order was entered, pending a hearing.

The hearing was held in March 2021 (remember what I said above about timing…) to address the issues raised, including having their children vaccinated against childhood diseases.  The mother had not done so, against their pediatrician’s advice.  The father testified about his desire to have the kids vaccinated and requested that the court take judicial notice of the childhood vaccination information on the CDC website.  The trial court declined, but without expressly providing its reasoning, with the Appellate Division assumed was Michelle’s opposition, ostensibly from what it gleaned from the record.

In its decision, the trial court found neither party credible – another issue I have blogged about – and essentially provided that the parties still treat each other “abysmally which is harming the children”.  However, it then allocated final decision making for educational and medical matters to the mother, and reduced the father’s parenting time schedule.

In the Appellate Court’s decision, it reviewed the purpose of judicial notice and provided: “When a court takes judicial notice of information available on a website, it may do so for either of two purposes: solely to take notice that the information appears on the website or for the truth of the matter asserted on the website.” (emphasis added).  The Court further found that the trial court is required to take judicial notice of facts not subject to reasonable dispute – adjudicative facts – when the party seeking the relief has provided the information, which the father did here.

The Court went onto discuss whether CDC evidence should be accepted for the factual accuracy of the CDC’s position, and the answer is yes if it is generally accepted in the scientific community because it’s a scientific fact rather than mere common knowledge.  In other words, it doesn’t matter if the general public accepts the CDC’s recommendation, it matters whether the scientific community generally does.  In this case, the pediatricians the mother consulted agreed that the children should be vaccinated, just as the CDC recommends.

Notably, the Appellate Court found that information from other scientific course could be relevant to the question, naming examples of Maine Centers for Disease Control, the Food and Drug Administration, the National Institutes of Health, the World Health Organization, the American Academy of Pediatrics, and the American Medical Association.

Again, while this isn’t about the COVID-19 vaccine, the case is directly on point in terms of judicial notice of the CDC website.  If more courts do this, perhaps the plenary hearings could be reduced on the COVID-19 vaccination issues, or at least shortened.

In addition to the Maine case, here is a brief update on new COVID-19 / family law cases from across the country and parent/child, but same theme… get the vaccine:

  • According to an LA Times article, in a LA case, a father was warned by a Court to get vaccinated or he may otherwise lose parenting time… this comment, taken from the transcript, was made after the parties agreed to vaccinate their child during settlement discussions at the courthouse and reported the settlement to the court, at which time the court asked each parent if they are vaccinated.  Mom said yes, dad said no, and the Court responded with that veiled threat.
  • In a NY Matter, J.F. v. D.F., the court ordered for an 11-year-old child to be vaccinated against COVID-19 pursuant to the mother’s request and over the father’s objections.  The parties in that matter have had years of intense litigation.  They agreed that their older teenage children (19 + 17) would be vaccinated, but dad objected to their 11-year-old being vaccinated.  Unlike the lengthy court process discussed above, this decision was written about a week after the mother filed her application (Order to Show Cause in NY).  The father did not want the vaccination until it was mandatory for their child because it had not been subject to long term trials for side effects and he claimed his daughter would not actually become ill if she did get COVID-19, as well as potential complications from the vaccine and short-term effects that could have prevented Thanksgiving travel.  However, the child’s pediatrician supported the vaccine, as the mother advised the Court in her pleadings.  Indeed, as expected, the Court had the pediatrician testify, but unexpectedly during the argument and not during an evidentiary hearing.  The child had an appointed attorney who was told to confer with her, and did even though the attorney was only previously involved in financial matters.  The child relayed her desire to be vaccinated.  Ultimately, the court determined that the mother wants the child vaccinated, the child wants to be vaccinated, the father is vaccinated and acknowledges that vaccines are important, the pediatrician endorses immediate vaccination.

The LA comment is on the cusp inappropriate for reasons set forth in my earlier blog post.  The Court cannot pre-judge a matter and determine that a parent loses parenting time for not being vaccinated without having an application in front of it setting forth the positions raised by the parties – here there was none because it wasn’t even an issue on the table it seems.  The NY case again raises the importance of hearing from a medical professional – even if not a full blown hearing which I suppose will be for the Appellate Court to address if the issue is raised – and the Court going a step further by speaking to a child.  I believe that the issue is still ripe for reversal if the Court does not hear from a medical professional or take judicial notice of the CDC website.  If it does, however, can a litigant get a vaccination dispute resolved in an oral argument, without a hearing, and have the decision protected on appeal?  I believe this will arise in the months, maybe years, to come.

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