Anti-Vaxxer’s proper to object in custody proceedings Foster Swift Collins & Smith

What will you do if your child is eligible for a COVID vaccine? In the course of 2021, COVID-19 vaccines came onto the market and will be administered as part of an accelerated approval process. People continue to differ in whether a vaccine makes sense in these conditions. Although no vaccine is currently available for young children, researchers overseas have started studies with children ages 5 to 12. For parents, the decision is imminent: should I agree to my child’s COVID-19 vaccination?

If a court gains jurisdiction over a custody dispute and transfers custody to more than one party, joint custody exists. Joint carers have the power to make important decisions on behalf of the child and they must do so in a cooperative manner. Do both parents agree on whether a COVID-19 vaccination is appropriate or do you have a dispute? Courts are not without precedence on the issue of vaccinations, but precedence comes before the pandemic. Reviewing a key pre-pandemic court ruling could be enlightening for those considering taking their parental dispute over COVID-19 vaccination to court.

On March 6, 2020, as the pandemic hit, the Michigan Supreme Court declined to review a court order requiring a child to be vaccinated. Matheson v Schmitt, unpublished Michigan Supreme Court order, occurred March 6, 2020 (file number 160931). The campaign came about when the parents disagreed on whether their three-year-old daughter should receive standard vaccinations for children. In such situations, the court must order an approach that is in its sole discretion in the best interests of the child.

As detailed in Matheson / Schmitt, an unpublished statement by the Court of Appeal dated November 21, 2019 (file number 347022), Ms. Matheson did not want her daughter to be vaccinated. She objected out of concern that the child might be predisposed to side effects and, related to the alleged risk of side effects, alleged that an order mandating vaccinations for the child would violate their human rights, as vaccination is a religious principle that is close to her heart. Mr Schmitt, on the other hand, did not buy any of it and wanted his child to be vaccinated.

Unsurprisingly, this problem was then confined to a battle of the experts. During the trial, Ms. Matheson’s doctor-expert testified that family history can show the likelihood that a child will experience a side effect. This child’s family history of lupus, rheumatoid arthritis, psoriasis, and other autoimmune diseases signaled the child’s predisposition to contracting rheumatoid arthritis from the vaccination, the doctor said. However, to the horror of his Anti-Vax client, he admitted that there is no test to determine predisposition to rheumatoid arthritis, let alone measure the likelihood that a vaccination will harm a particular person.

As a counter-argument, Mr. Schmitt gave testimony from a doctor who was familiar with the child’s family history of autoimmune diseases, but who strongly recommended the child to be vaccinated. Another expert on Mr. Schmitt testified that vaccinations were “medically necessary” for the child, pointing to the fact that whooping cough, which can lead to pneumonia or even death in an unvaccinated child, was in Michigan at the time “epidemic proportions” existed. She shared personal anecdotes about the adverse health effects she had seen in unvaccinated children, and noted that the American Academy of Pediatrics recommends all children get a full list of vaccinations.

The court determined Michigan’s best interests and ordered the child to be vaccinated. Mrs. Matheson appealed. The appeals court accepted Ms. Matheson’s evidence on the risks associated with certain gunshots, but rejected her conclusion:

[T]The fact that vaccines can potentially have very serious side effects is beyond dispute, and the child’s family history with autoimmune diseases is not an issue either. The dispositive questions, however, are not whether vaccines can potentially have adverse effects or whether the vaccine industry and pharmaceutical companies are unduly influencing government regulators. Rather, it is a question of whether it is in the best interests of the child to be given any vaccinations, taking into account their physical health. Even if one accepts as valid and accurate the claimant’s assertion that the child has a certain predisposition to an autoimmune disease based on their family history, that mitigated risk simply does not in and of itself outweigh the substantial benefits that child protection will bring to the child would face the threat of serious and life threatening diseases in the population. In other words, the risk of harm to the child from exposure to vaccines that could potentially trigger an autoimmune disease is speculative and the record does not show that vaccination would put the child at risk of injury.

After hearing the testimony firsthand, the court had discretion to order the vaccinations. The appeals court found that the court had not misused that discretion and the court’s decision was the right of this case.

As Matheson illustrates, despite medical consensus to the contrary, anti-vaxxers find their vax-related beliefs to be expensive. In the end, the courts seem to be following a trend towards what they consider to be the “safer side”. Unless it is proven that a particular vaccination causes a particular side effect in a particular child, few courts will endorse the Anti-Vax parent. It is not enough to demonstrate a general risk for part of the population.

In addition to consulting with your child’s doctor, you should also consult with your family law attorney to determine if delayed vaccination in a pandemic poses a greater health risk to your child. Co-parenting isn’t easier in a pandemic, but if you carefully consider the law and science, you will make the right decision for you and your family.

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