LOS ANGELES — Flanked by their lawyers, the divorced parents hashed out an agreement outside the Pasadena, California, courtroom and returned to inform the judge: They had agreed their young son would get the COVID-19 vaccine.
“Absolutely he needs to be vaccinated,” Los Angeles County Superior Court Judge Harvey A. Silberman said.
Then he asked the parents: “Are the two of you vaccinated?”
The mother said yes. The father said no. “Sir, you better get vaccinated,” the judge said, according to a court transcript. “Or you could very well lose time with your child unless you have a medical reason not to.”
As children and teens have become eligible for COVID-19 shots, divorced parents have clashed in court over whether to get kids vaccinated. In some cases — including the one now before a judge in Los Angeles County — family courts have also started to weigh in on parents being vaccinated against the coronavirus.
In Illinois, a judge made headlines after ruling that a mother could not see her 11-year-old son until she had gotten vaccinated, in a decision that was later rescinded.
In New York, a father was suspended for visits unless he got vaccinated or underwent regular testing. “The danger 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,” Judge Matthew F. Cooper wrote.
Attorney Lloyd C. Rosen, who represents the New York father, said his client is getting tested regularly in order to keep seeing his daughter, but has filed a notice to preserve his right to appeal the ruling.
Rosen argued that the court had overstepped. Vaccinations and other medical decisions often come up in custody cases, since “it’s not uncommon for parents to disagree regarding medical care or treatment for a child,” he said.
“Here the court is not stepping in and making a decision for the child that the parents can’t make,” Rosen said. “The court here is stepping in and making a decision for a parent regarding themselves — as a condition to their parental rights.”
Cooper, the judge in that case, wrote that the question was not whether he could require an adult to be vaccinated, which “would stretch the authority of a matrimonial court to unprecedented lengths,” but whether the mother could make vaccination or testing a condition of the father visiting the child.
At the L.A. County hearing, the divorced father said he had medical reasons for not being vaccinated, but Silberman seemed skeptical. In a court order, he directed the father to either provide a medical exemption from his doctor or show that he had gotten vaccinated against COVID-19.
If the father genuinely has a health reason for not getting vaccinated, “I want to know what the medical evidence is,” Silberman said during the hearing. “This child needs to be protected.”
The move surprised attorney Patrick Baghdaserians, who represents the mother. Although Baghdaserians said he is aware of judges supporting COVID-19 shots for children when the issue has arisen in custody cases, “I’ve never seen a judge take the next step, which is … if one of the parents is not vaccinated, that potentially exposes the child to harm.”
Baghdaserians praised the judge and said that if the order were ignored, his client would seek to change the custody arrangement. The mother is supportive of COVID-19 vaccination, he said.
Attorney Alphonse Provinziano, who represents the father, said his client had asked him not to comment on his specific case. He said that in general, California family courts have wide latitude to seek information from parents, but he was unaware of any legal authority for them to change custody based on vaccination status.
Provinziano said it’s possible that someone could try to make such a case by arguing that, “‘Well, I don’t think it’s in the best interests of the child’” for a parent to not be vaccinated. But “that, I think, would end up going to the Supreme Court of California. … It would be a heavily litigated case.”
Provinziano also argued that in general, if a parent has a medical reason to not be vaccinated, “you can’t use that disability to say that you’re somehow unable to be a parent to your child.” He pointed to a California ruling that found courts cannot use a physical disability as evidence of whether someone is a fit parent.
The Times is not naming the parents involved in the court case in order to protect the privacy of their child. In response to questions sent for the judge, a Los Angeles County Superior Court spokeswoman said Silberman was prohibited under ethics canons from making any public comments on a pending case.
Rachel Rebouché, interim dean at Temple University Beasley School of Law, said that most state statutes that govern child custody are very broad, centering on “the best interests of the child.” For instance, courts have been able to restrict visitation rights if a parent lives with a partner who is deemed unsafe for the child, Rebouché said.
In California, courts scrutinize the ability of parents to care for the child, she said, so “whether or not the parent will seek to protect the child from COVID is relevant to the court.”
Still, Rebouché said the L.A. County case and others raise questions about “where are the lines that you draw for what courts can permissibly require parents to do with threat of a custody loss.”
If some people see not getting vaccinated as an issue of religious freedom, “is losing time with a child a denial of that right? Or is it something else?” she asked.
John F. Banzhaf III, professor emeritus of public interest law at George Washington University Law School, argued that there is a strong precedent for courts limiting visitation for unvaccinated parents: child custody cases involving cigarette smokers. Family courts have ordered parents who smoke to stop doing so in their homes for 24 or 48 hours before a child visits, Banzhaf said.
In some cases, judges have denied custody to a parent because “the very fact that you would continue smoking around the child, knowing the risk, knowing how widely publicized the risks are, suggests to me a lack of concern” for their health, Banzhaf said.
The legal debate revolves around the protective effects of the vaccines not just for the recipient, but for children and teens around them. Vaccinated people can spread the virus, but health officials have stressed they are much less likely to get infected in the first place, reducing the likelihood they will pass it along.
Rosen, the attorney representing the New York father, argued that even if the father got vaccinated, that would not eliminate the possibility of him getting and transmitting the coronavirus. He also noted that the child goes to day care with other children.
“There’s just so many different ways this child could be exposed to COVID that to single out the father and make his access conditional upon his vaccination status is not only inappropriate, but well beyond any kind of reasonable determination in the best interests of the child,” Rosen said.
Banzhaf argued there was strong evidence for the risks posed to a child by spending time inside with an unvaccinated parent. In fact, he said, “the evidence is far clearer than we used to have with regard to secondhand tobacco smoke” in custody cases.
What will happen for the father in the L.A. County court case remains to be seen. Silberman gave the man roughly a month to provide the documents he requested, which he would review privately.
At the November hearing, Silberman told the father, “I hope you do have a genuine health reason for preventing you from getting” the vaccine. “I just want to know what that is.”