We have published various blogs regarding the on-going struggles to co-parent during the COVID-19 pandemic. This sentiment still rings true today in regard to the differing views parents may have with respect to vaccinating their children against Covid-19. The issue of vaccinations was recently addressed in S.M. v. E.M., 2022 NYLJ LEXIS 722 (Sup. Ct., Nassau Cty. 2022), wherein the Hon. Stacy D. Bennett, A.J.S.C. of the Nassau County Supreme Court, granted a father’s application for a change of custody on the limited issue of medical decision making specifically related to vaccinations of the subject children.

The parties to this action had been divorced since 2016. In accordance with the terms of their Stipulation of Settlement, the parties had joint decision making for all matters involving their children, including, in pertinent part, medical decision making. As has proven true for many families in the wake of the COVID-19 pandemic, the parties could not agree on whether to vaccinate the children against the COVID-19 virus. While the father was himself vaccinated, testimony offered at the hearing (as memorialized in the Court’s decision) showed that the mother was not vaccinated, and that she “believes the vaccine is at ‘its infancy stages’ and more research is necessary.” S.M., supra. The substance of the litigation involved each party’s desire to have sole decision making so as to determine whether the children would, or would not, receive the COVID-19 vaccine.

In a hearing held over the course of three trial days, each party testified as to the reasons they supported or opposed the children receiving the vaccine. Additionally, each party testified to specific conduct engaged in by the other parent (both before and during the time of COVID-19) which each claimed was indicative of poor co-parenting and poor parental decision making sufficient to form a basis to change custody. While no testimony was offered from a doctor, the parties stipulated that the children’s long-standing pediatrician supported the children receiving the COVID-19 vaccination.

In rendering its decision after trial, the Court did not address, in any manner, the efficacy of the vaccine. Rather, the Court looked to the best interest of the children, “[t]he paramount concern in making decisions regarding custody.” Id. Toward that end, the Court found it in the children’s best interest to follow the recommendation of the children’s pediatrician, a medical professional jointly selected by the parties and in whose care the children had been for more than ten years. The Court also relied upon, and cited to, other cases addressing COVID-19 related matters, including J.F. v. D.F., 74 Misc.3d 175 (Sup. Ct. Monroe Cty. 2021) and C.B. v. D.B., 2021 NY Misc. LEXIS 5111 (Sup. Ct. New York Cty. 2021). Citing to the J.F. v. D.F. decision, Justice Bennett acknowledged and noted that, “New York State is ‘transitioning towards a “new normal”; citizens are taking precautions to balance staying safe from Covid-19 and its variants alongside the desire to return to some semblance of regular life.” Weighing the totality of the circumstances before her, Justice Bennett determined that, “based on the testimony, evidence and articulated medical opinion of the children’s long-time pediatrician”, best interests of the children supported an award of medical decision making authority to the father, solely and specifically regarding vaccinations.

The material in this blog is only meant to provide general information and is not a substitute nor is it legal advice to you.  Readers of this article should seek specific legal advice from legal counsel of their choice.  In the event that you need legal assistance, please contact Kara K. Miller at kmiller@jaspanllp.com or (516) 746-8000.