In my prior COVID-19 blogs, which you can access here, here, here, and here (for a general vaccine blog) , I have suggested that it may take some time for decisions to surface and then even more time for the Appellate Division to opine. Well, as luck would have it, a trial court decision from Morris County, New Jersey, has been making its rounds. The decision in the matter of Richmond v. Natanson is unpublished (not precedent setting), but still an important read on the topic in terms of what the court considered that will likely be considered in future cases as they start to be decided. Let’s break it down by the facts and the decision –

Bear with me, these are important –

Plaintiff/Mother filed an Order to Show Cause (emergent application heard immediately if deemed emergent by the Court, as opposed to on a motion cycle that would have it scheduled for about a month later), seeking sole legal custody for medical decisions and authorization to have their eight-year-old child vaccinated against COVID-19. Interestingly, the Court did not deem it emergent, even after taking judicial notice of the CDC in favor of the vaccination and the child’s pediatrician’s recommendation for it, because there was no evidence that the vaccination is immediately required and the evidence does prove that it’s not mandatory even by the pediatrician who recommends it. I find the lack of emergency interesting – in other words, just because a parent wants it done ASAP doesn’t mean it actually has to be done ASAP per the medical evidence and judicial notice at the time.

Instead, the Court converted the Order to Show Cause to a Motion, which alleviates the filing party from having to pay to modify the application to a Motion and the filing fees. A plenary (evidentiary) hearing was held on five non-consecutive days, as anticipated in prior blog posts because hearings are supposed to be held when competing certifications are presented. The five days spanned between March and June, which gives you an idea of the court’s busy schedule at this time, not just in Morris County but all across the state, which is a topic for another time.

Plaintiff presented an expert witness, a medical professor of pediatrics from Yale University, with a focus on epidemiology and infectious disease at Yale University School of Medicine and Yale Graduate School of Arts and Sciences, as well as who sees and treats patients. The expert concluded that the vaccine was safe for this child and is in the child’s best interests to get the vaccination. He also testified about COVID-19 and its impact on children, as well as the FDA approval process and difference in timing between the approval for children ages 5-11 and older age groups, and the propensity of death from COVID-19 vaccine in unvaccinated children of this age group.

Also of note, Plaintiff testified about residing with her mother who is in her 70s and has cardiac and thyroid issues (i.e.: she wants to vaccinate her child in part because of her mother’s underlying conditions). Moreover, as the decision reveals during Plaintiff’s testimony, Defendant/father has somewhat limited parenting time in that he exercises such time on alternating weekends from Thursday to Sunday. In our world, this is 4/14, whereas Plaintiff has the child for the other 10/14 overnights in a two-week period. I find this important, too, because Plaintiff is clearly the Parent of Primary Residence not only by the defined title she already held, but because the child spends a greater amount of time with Plaintiff than Defendant. Their custody arrangement was not in a formal agreement but rather a private agreement between the parties with which they both cooperated.

The child’s pediatrician also testified. As set forth above, the doctor supports the vaccine for this child, too.

Per the Plaintiff’s evidence, Defendant did not object to the notice that Plaintiff provided him of the child’s vaccination appointment between November and December (just about a full month), until his attorney contacted her attorney. Also per the evidence, the child had all other vaccinations aside from COVID-19, and an annual flu shot, without any objection from Defendant. Additionally, the child would have engage in virtual learning if the child had a COVID-19 exposure. It seems that Plaintiff was attempting to demonstrate that being vaccinated could reduce such possibility.

Defendant was up next. Interestingly, the decisions reads that he admitted that the vaccine is in the child’s best interests, but opposed it because of potential side effects and adverse reactions, as well as lack of long-term data on both. He also testified as to his belief that there is little benefit from the vaccine for children, and that virtual learning is actually good for the child, who would not otherwise be kept out of activities for lack of vaccination. On cross, he conceded that there are children who have been very ill from COVID-19 and that some of the side effects mirror that of the flu vaccine, which the child has had.

Defendant, of course, also presented an expert – a Texas pediatrician but not as much information is provided as to the doctor’s background because Plaintiff conceded to the doctor’s status as an expert (i.e.: didn’t have to review background to qualify as an expert during trial). The doctor testified to their opinion that children need not be vaccinated because the impact of COVID-19 to them is similar to a common cold, which is not vaccinated against, they have a robust immune system to defend against it, and the doctor doesn’t recommend an FDA-approved drug that hasn’t been on the market for at least three years. The doctor also testified to the adverse impact of the vaccination on children (47,000 cases). The expert specifically testified to the opinion that there is no benefit to the child receiving the vaccine. This expert never met the child and was qualified as an expert pediatrician, but not in infectious disease or epidemiology. Plaintiff’s motion to bar the expert’s testimony was denied, but clearly did not impact the outcome in her favor.

Of note, while the expert qualifications for both parties were not challenged, there is a pro-vaccine expert from the Northeast and an anti-vaccine expert from Texas. As anticipated in my prior posts, these cases require experts and there will always be a difference in opinions between experts on any topic that will allow each party to find one who supports their respective position. This is not intended to challenge either expert.

In the court’s decision, it cited to available facts regarding COVID-19, the creation of the vaccine and the CDC recommendations for the vaccine, as well as rates of children who are vaccinated, which is low when compared to the recommendation that is pro-vaccine. The court noted that the vaccine is not mandatory (if any age group).

The court then moved it’s analysis to the custody statute and legal decisions. In doing so, the court cited to authority that provides that the parent with more parenting time is generally afforded with more decision making authority because they are more so aware of what is best for the child on a day-to-day basis (cough cough – no pun intended – note above as to the time-sharing arrangement).

The court turned to M.A. v. A.A., which is the blog linked above about a parental dispute over a child’s vaccination, unrelated to COVID-19, but which was coincidentally released around the time the vaccine was becoming available. There, the Appellate Division granted the father the medical decision making authority for the child’s vaccinations, over the mother’s objection. The court also cited to cases from other states, again discussed in prior blogs, where a parent was given the authority to vaccinate the child against COVID-19 over the other parent’s objection. This analysis of reviewing other states decisions is common in cases such as this where the issue is relatively new so we do not have much precedent.

The court then conducted a best interests analysis, which is a review of the factors set forth in the statute. Of note:

  • the court found that the parties can communicate, they just have a fundamental dispute as to the vaccine;
  • they both have a willingness to accept custody and parenting time even though they did not have a formal agreement;
  • both love and want what is best for their child;
  • the child is 8 years old and cannot decide for herself. The court did not give any weight to the child’s preference, which plaintiff claimed was to receive the vaccine;
  • the child is healthy, no underlying medical conditions, and has been routinely vaccinated without adverse reaction;
  • notably, the court did find that continuity/quality of education would be impacted if the child was not vaccinated because of potential quarantine/virtual learning if she is exposed/close contact with someone exposed to COVID-19, which has a greater likelihood if unvaccinated even though the vaccination is not dispositive of transmission. The court agreed with Plaintiff that virtual learning is not in the child’s best interests, but also noted that virtual learning is still possible, so the factor was skewed toward Plaintiff even though it’s not alone determinative of the outcome.
  • while the court found both parents to be fit, it found that Plaintiff is better equipped to credibly provide testimony on day-to-day issues resulting from the vaccination status because Plaintiff is the Parent of Primary Residence; thus, the court gave her more authority because of her greater custody responsibilities/time with the child. Notably here, the court did not find credible Defendant’s testimony about the child being able to participate in their activities regardless of vaccination status because he has limited personal knowledge as compared to Plaintiff with respect to the child’s day-to-day activities. Likewise, on cross, Defendant acknowledged that he wouldn’t take the child places where vaccines are required, which does suggest limitation. In essence, the court sums up to say that it gave “heavier weight to the Plaintiff’s fitness as a parent in considering how vaccination status will affect the minor child’s daily life“.

Following this analysis, the court found that the risk of vaccine side effects outweighs the risks of remaining unvaccinated, which it detailed.

Importantly, after again concluding that the Plaintiff should have the authority to vaccinate the child against COVID-19, it discussed its consideration of the “adversarial nature” of the hearing. Plaintiff’s expert was overwhelmingly qualified, while Defendant’s expert was more limited to general pediatrics who relied on a reporting system of adverse reactions (VAERS), which was conceded to be a “passive reporting system with no method of verifying the veracity of its reports”. Also, Defendant’s expert relied on the vaccine’s limited time on the market to support the conclusion of the child remaining unvaccinated, without ever meeting the child or otherwise analyzing the vaccine for this child specifically. It is also important to note that, earlier in the decision, the court specifically stated that it found Plaintiff’s testimony to be credible. The fact remains that credibility is key, as previously blogged about.

So what does it all mean? Facts matter, credibility matters, experts matter. Before deciding whether it’s worth filing this type of application, make sure you have an expert lined up who is qualified to discuss the disease and vaccine itself, in addition to the child’s pediatrician if he/she is on your side of the aisle. If the pediatrician is not, perhaps get a pediatrician as a second expert to counter the child’s pediatrician’s opinion, but have the pediatrician meet with the child instead of just relying on information unrelated to the child. Take a look at your custody agreement/plan and try to figure out if a court may or may not give your request more weight due to the nature of the arrangement. Also, clearly time is of the essence, not so much with respect to seeking this in an emergent fashion, but with respect to seeking it now for a decision to come within a few months/under a year, because of the reality of the court’s backlog and non-consecutive hearing dates.

We have now had about 3/4 of a year for the CDC recommending the vaccine for this age range (5-11), and just over a year for the age group above it. We know what that means, it’s only a matter of time before the cases start to raise the issue for babies, the newest approved age group, and I have to imagine that someone in some state has already filed for that authority over the other parent’s objection. As the mother of an 18-month old, I will keep an ear to the ground and update when I can.

__________________________________________________________________________________________

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

Leave a Reply

Your email address will not be published.