Divorce always has the potential to be fraught with disagreement, especially when it comes to parenting, and the COVID-19 pandemic created additional issues that can complicate the process. Local divorce lawyer Cary Mogerman says that determining whether to vaccinate one’s child against COVID-19 is becoming a more common point of contention.
Mogerman is a principal attorney at Carmody MacDonald P.C., a St. Louis-based law firm with various practices, including family law, and also serves as the president of the American Academy of Matrimonial Lawyers.
“We’ve been seeing it a fair amount,” he says of the vaccination issue. “The urgency of a public health crisis probably drives it to the top of the list in terms of issues which might arise when two parents don’t agree on how to raise their children.”
Even before the pandemic, some parents disagreed about whether to have their children vaccinated, Mogerman says, but not to the extent being brought to mediators and courts since the FDA approved COVID-19 vaccines for children as young as 6 months old.
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“Anytime parents are not in an intact household, making parenting decisions from a generally common viewpoint, the potential arises for a dispute of this nature to occur,” Mogerman says. “The crucible of this pandemic has driven a lot more of those disputes because the information about the vaccines themselves maybe is not as prevalent, or has not been disseminated, or the vaccines are not yet perceived by some as having the historical safety record that you might rely on in favor of an argument for another type of vaccine.”
As legal professionals work to navigate these disputes, there are currently no clear Missouri appellate court precedents to rely on that are specific to the COVID-19 vaccination issue, Mogerman says. He points to a case that came before Judge Richard Dollinger of the Monroe County, New York, Supreme Court. The dispute involved the question of whether an 11-year-old child should be vaccinated. The court determined that “the father’s objections, while sufficient to raise some substantive concerns, are not sufficient to deter this court from concluding the best interests of the child require the issuance of an order that the child be vaccinated as soon as possible.”
As the New York parents argued in court, the child’s pediatrician appeared as a witness and stated that the child would be best protected from COVID-19 by the vaccine, explaining the risks of both the vaccine and COVID-19 infection and concluding that infection poses a risk of greater harm. The child also expressed her own desire to be vaccinated.
Mogerman notes that the New York case was a trial court order written like an appellate opinion. “It’s been passed around the country and been very well commented upon,” he says. “That and maybe one or two similar types of cases from family court trial judges really are all that I’m aware of getting much circulation right now which are specific to the COVID-19 vaccination issue.”
Unless appellate courts issue clearer guidance, trial courts are likely to rely on a statute that identifies parameters for decisions “in the best interests of the child under the totality of circumstances.” However, Mogerman explains, most family court cases are very fact-specific, so even appellate jurisprudence (a court’s ability to hear appeals from lower courts) provides only broad guidelines that must be applied to the specifics of a particular case.
Mogerman notes that “the currency in the family court is information. That’s the coin of the realm with which courts make their decisions, and the more reliable the information you can present to a judge, the better and more persuasive your argument is.”
Mogerman continues: “If you go in and say, ‘I don’t want this vaccination for my 5-year-old because I don’t believe in vaccinations,’ that’s not a very compelling argument. Courts respond to facts, science and expert testimony regarding a child’s health and potential vulnerability.”
Parents who are in the midst of a divorce might have the most difficult time with this kind of dispute. Settled divorce cases generally include parenting plans that call for a parenting coordinator or mediator to step in should a disagreement escalate. For those without a finalized dispute resolution mechanism, the court is the only legal option for parents who can’t come to an agreement.
Carmody MacDonald P.C., 120 S. Central Ave., Suite 1800, Clayton, 314-854-8600, carmodymacdonald.com