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Vaccination Can Play a Role in Custody and Visitation

The actions of a judge in Cook County, Illinois, shocked the public this week and demonstrated that a parent or caregiver’s vaccination status can affect the outcome of custody and visitation proceedings.

Judge James Shapiro, who sits in Cook County, where Chicago is located, apparently inquired into a mother’s vaccination status during a child support hearing in August.  The child’s father had not raised the issue, so the judge did so sua sponte, of his own accord and without prompting by either party.

The mother, Rebecca Firlit, had not been vaccinated and, until this decision, had shared 50-50 custody of her 11-year-old son with her ex-husband, who is vaccinated.  The two had been divorced for seven years.  Previously, Ms. Firlit had adverse reactions to other vaccines, so her doctor advised her that it was wisest not to get the Covid mRNA vaccine because no other mRNA vaccines have been approved by the FDA, so it was impossible to predict whether she would be allergic to this new type of vaccine.

After Ms. Firlit told Judge Shapiro that she had not been vaccinated, the judge issued an order suspending all in-person contact with her son until she receives a Covid vaccine.  No one had requested that the judge address the issue of Ms. Firlit’s vaccination or prohibit visitation, so most commentators characterize this as a broad and shocking judicial overreach by Judge Shapiro.  Ordinarily, in the American judicial system, judges are only supposed to address the issues brought before them by the parties.  This is a key characteristic of judicial restraint, which is highly valued in our system.

A court considering child custody and visitation is tasked with determining the course of action that is in the best interests of the child.  Therefore, if the question of parental vaccination status is properly before the court, having been brought up by one of the parties, then a court should evaluate the situation to determine where the best interests of the child lie.  It is far from clear, however, that a judge can legally order a parent to be vaccinated without finding that some special circumstance is present, such as the child being immunocompromised.

Parental disagreement about vaccinating their child

What if parents with joint custody disagree about whether their child should receive a Covid vaccination?  Often, when parents disagree about their child’s medical treatment, they will try mediation first.  The court will appoint a guardian ad litem, who will learn more about the situation, talking with both parents and potentially the child before presenting these findings to the court.  

Important factors may include the health of the child and any other household members.  For example, do any elderly or immunocompromised people live in the same home as the child?  Does the child have any special health considerations?  How much is the child exposed to crowds and other unrelated people in school, extracurriculars, or worship?

If the disagreement about vaccination cannot be resolved through mediation, then the court will decide based on the best interests of the child, taking into account all relevant facts and circumstances.

If you are in the midst of a disagreement with your child’s other parent about a medical issue, then call the law offices of Krum Gergely & Oates for a consultation with one of our experienced Maryland or Virginia family law attorneys.