The courts will ensure a child's safety if it finds that a parent’s conduct puts the child at risk
The issue of unvaccinated parents and custody could arise in family courts with the release of vaccination passports, says Laura Paris, associate at Shulman & Partners LLP.
Although disagreements on parenting have escalated since the COVID-19 pandemic due to new challenges around keeping children safe and socially distanced while maintaining access and custody arrangements, there is no dispute in the courts yet on unvaccinated parents, Paris says.
“I’m interested to see how things end up falling in place with unvaccinated parents. It’s just not something that we’ve yet seen, although I’m quite sure that there will be disputes that come up about it if that’s the direction we do go in with vaccine passports.”
Russell Alexander, founder and senior partner at RIA Collaborative Family Lawyers says that during COVID, lawyers have dealt with disputes ranging from parents not following existing agreements and using the virus as the rationale, to conflicts over social distancing and family vacations, and in-person or remote learning for children. Another growing issue, he says, is parents deciding whether to vaccinate their children.
“That’s evolving even further, if the U.S is any indication… a parent choosing to not be vaccinated and to put their child at risk could face potential orders from the court,” says Alexander. He cites an Illinois judge’s decision to revoke a mother’s custody of her 11-year-old son due to her unvaccinated status. However, the judge later nullified his decision.
Alexander says that a judge would not make an order revoking an unvaccinated parent’s custody based on sole discretion unless one of the parents asked for it and “pled that relief.”
“I think it would be highly unlikely that a court would make this kind of order unless one of the parents was requesting it, and I think the parent requesting it would also need some medical evidence to show that their family unit or the child is at risk if somebody chooses not to get the vaccine.”
Paris says it is not the job of the family court to decide whether COVID safety measures are scientifically accurate, so ultimately, family disputes about COVID protocols would follow the direction of the government.
She says, “what has come out of the courts more or less is that the court directives are going to fall in line with government directives.”
However, the courts can resort to the parens patriae jurisdiction, which means the courts can do whatever is deemed in the child’s best interest, regardless of the conduct of the parents. Paris says the courts may supervise a parent’s access until they prove they can make appropriate decisions and not put the child in any dangerous or unsafe situation.
“If it’s proven before the court that a certain parent is putting a child at risk by not following specific protocols as directed, the court will have jurisdiction if they believe that it’s in the child’s best interest to protect the child in whichever way that they feel,” says Paris.
Citing the 2020 Guerin. v. Guerin case where the judge gave an order limiting a father’s visitation to online contact after he was found guilty of “choosing to ignore safety protocols,” Alexander shared a similar view saying, “if there is evidence that a child is at risk because of a parent’s conduct, the judge will step in and ensure the child’s safety.”
Alexander says although it is unlikely that a judge would order a parent to get the vaccine, underlying health concerns within the family or with a child who is immunocompromised could undoubtedly make a judge order a change in custody if the parents choose not to be vaccinated “because they’re not putting the best interest of the child first.”
“So, if there’s evidence showing that a parent can get vaccinated and chooses not to, and we’re into a fourth wave potentially with a Delta variant or other variants, the court can certainly say until you get vaccinated or until the pandemic is over, you’re going to lose custody and potentially only see your children online.”
In disputes where a parent cannot take the vaccine or adhere to COVID safety protocols for medical reasons, Alexander says the law would determine the case’s outcome by its facts and evidence. Still, it is unlikely that a parent will be disadvantaged or lose custody of their children because they cannot get the vaccination for medical reasons, he says.
“If a parent has medical proof that the vaccines is not good for them and if the doctor says they’re going to have an adverse reaction, or it’s going to interact with some other medication that they’re on, the courts are not going to hold that against the parent, but I think they’ll structure an access or parenting regime that still ensures the child safety.”