J.F. v D.F.

[*1] J.F. v D.F. 2021 NY Slip Op 21327 Decided on December 3, 2021 Supreme Court, Monroe County Dollinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 3, 2021
Supreme Court, Monroe County

J.F., Plaintiff,

against

D.F., Defendant.



Index No. I2012001795



Richard G. Curtis, Esq.

Attorney for Plaintiff

Rochester, New York

Seema Ali Rizzo, Esq.

Attorney for Defendant

Rochester, New York

Lisa B. Morris, Esq.

Attorney for Children

Rochester, New York
Richard A. Dollinger, J.

When joint custodial parents can't agree on the best interests of their child, a court is thrown into the middle, that uncomfortable — but ultimately necessary — position of making an important decision for someone else's child.

Here, the question is whether an 11-year-old child should be vaccinated against the COVID virus when her father, citing a series of factual concerns articulated on published websites, disagrees. For the following reasons, the Court determines that the father's objections, while sufficient to raise some substantive concerns, are not sufficient to deter this Court from concluding that the best interests of the child require the issuance of an order that the child be vaccinated as soon as possible.

This matter involves a longstanding dispute between these parents. The couple were divorced eight years ago. The couple have a shared residency in place for their three daughters. This Court has twice written opinions on the intra-family disputes, most recently several weeks ago when the Court dismissed the mother's complaint for an [*2]order of protection. J.F. v. D.F., 2021 NY Misc. LEXIS 5473 (Sup.Ct. Monroe Cty 2021). Now, the couple just concluded a several day hearing on an unresolved dispute over child support calculations, the mother's employment history, imputation of income and attorneys fees.

In the midst of these disputes, the couple agreed that their two older daughters ages 19 and17 would be vaccinated against the COVID virus. Recently, however, the Centers for Disease Control and Prevention approved a vaccination protocol for younger children, including 11 year olds.[FN1]

A week ago, the mother brought an order to show cause, asking for an order to require the vaccination of the daughter. The Court signed the order, set a one-week turn around, asked for responding papers — which were timely delivered — and heard the application yesterday. In the mother's affidavit, she alleged that the daughter was eligible for vaccine on November 9, 2021. She emailed the father to allow the vaccination and five days later, he wrote back and refused. The mother averred that she called the child's pediatrician and they advised that the child should be vaccinated. Ten days elapsed before the mother filed the order to show cause and the father continued to oppose the vaccination. The mother sought a court order and attorney fees. As part. of her application, the mother alleged that the child's pediatrician favored an immediate vaccination

In his response, the father said he told the mother that he would not permit the vaccination until it was "mandatory" and that he understood it was not mandated. Six days later, he told the mother that he had "an open mind" about the vaccine and that he would contact the child's pediatrician to review the possible side effects of the vaccine. In his affidavit, the father, professor at one of the area's premier institutions, argued that the vaccine has not been subject to long term trials for side-effects, COVID was "benign" to a child of his daughter's age, there was no mandate for the vaccine and there were complications, potentially serious (myocarditis and pericarditis) and finally, that the short side-effects could have impacted the child's ability to travel over the Thanksgiving holiday. He also detailed in his affidavit that the emergency use authorization for administration of the vaccine to a child of 11 issued by the CDC was based on a small sample that only tested for short-term side-effects.[FN2] Based on this research, the father concluded that there was no imperative for vaccinating the child and that any administration of the vaccine should wait until "there were more reliable trials" which he regarded as a prudent move. However, significantly, the father, while [*3]challenging the science for the vaccination, did not dispute that the child's pediatrician had favored vaccinating the child.

The father's counsel argued that the mother had jumped the gun with the order to show cause: the father simply wanted more time to confer with the pediatrician before making a final decision. The mother's counsel, in a reply affidavit, accused the father of deflection, arguing that the mother had informally raised the issue of the necessity of a vaccine in a court proceeding earlier, the father still objected and the mother, fearing a longer and unnecessary delay, brought the order to show cause.

The Court made the order returnable in less than a week. The mother's attorney argued that any testimony from the pediatrician was unneeded: the mother averred that the pediatrician supported vaccination, the father did not dispute that the pediatrician favored vaccination and, hence, the mother's counsel argued, the fact of the pediatrician's opinion was undisputed and the Court could rely on it. After reviewing all the papers, the Court concluded that the Court should hear from the child's pediatrician.

The Court required the mother to set up a conference call with the pediatrician. The Court had the clerk swear in the pediatrician as the Court's witness.[FN3] The Court then asked the doctor, after a few preliminary questions, whether the doctor concluded that the child should be vaccinated. The doctor concurred that the child would be best protected from COVID by vaccine, even though she was only 11 years old. Both the father and mother's counsel cross-examined the doctor. In response to the father's counsel, the doctor said: " . . . the vaccine is safer to get than it is to run the risk of getting the illness which is why I recommend it." The doctor admitted that the child could suffer short term side effects — respiratory symptoms — and longer term side effects, including myocarditis and thrombosis. She contended that there was a "higher risk" of complications from COVID than from the administration of the vaccine and she added "the risk of myocarditis form the illness, the COVID illness, is about 11 times more likely than to get myocarditis from the vaccine."

In cross-examination, the doctor acknowledged that she had not actually seen the child since 2018, although the child had been routinely seen by the doctor's office throughout the last three years and most notable less than three months earlier.

At the conclusion of the doctor's testimony, the Court requested that the child's attorney confer with the child about her view of the possible vaccination. The AFC had not previously been involved in the pending proceeding, which only related to financial matters. The AFC, at the Court's direction, then conferred with the child and reported that the child has authorized her to report to the Court that while she understood her father's concerns about safety, it was her desire to join her sisters in the vaccine process. The AFC supported the request for administration of the vaccine.

Importantly, this Court begins by distinguishing the judicial dilemma posed in this matter: the resolution here does not implicate a government-imposed mandate on adults, as numerous judges have reviewed, with varying results, during the last wave of [*4]COVID. See e.g.,Missouri v. Biden, 2021 U.S. Dist. LEXIS 227410 (E.D. Mo.2021)(Centers for Medicaid and Medicare Services mandate for COVID vaccines by 12/6 declared unenforceable); Broecker v. New York City Dep't of Educ., 2021 U.S. Dist. LEXIS 226848 (E.D. New York 11/24/21)(temporary restraining order to prevent mandate for teachers to be vaccinated denied); We The Patriots USA, Inc. v. Hochul, No. 21-2179, 2021 U.S. App. LEXIS 32880, 2021 WL 5121983 (2d Cir. Nov. 4, 2021)(upheld a New York State vaccine mandate in the context of healthcare employees). This dispute does not implicate even broader "mandate" requirements imposed by a private employer. See Sambrano v. United Airlines, Inc., 2021 U.S. Dist. LEXIS 224378 (N.D. Tex. 11/19/21)(denied injunction to enjoin United from placing Plaintiffs, and other similarly situated employees, on unpaid leave). Finally, this matter does not involve the issue of parents arguing over vaccines required for attendance at public schools. See e.g., Heffer v. Krebs, 196 AD3d 684 (2d Dept 2021)(when the parties' separation agreement did not unequivocally prohibit the plaintiff from having the child inoculated and in light of the parties' express intention to maintain the child's enrollment in public education and New York State's then newly enacted public school vaccine mandate requiring such inoculations in order for the child to continue to attend public school ,the mother could not demonstrate that she was prejudiced by the failure of the plaintiff to consult with her prior to having the child inoculated); see also F.F. v State of New York, 65 Misc 3d 616 (Sup. Ct. Albany Cty 2019)(although state eliminated religious exemptions, there was a long line of cases upholding the exercise of the state's police power to require children to be vaccinated before attending public and private schools and thus, the parents were not likely to succeed on the merits).

Other states have, in some contexts, dealt with parents, who had negotiated joint custodial status, when one parent has declined to have their children inoculated. See e.g., Bulkley v. Bulkley, 82 A.3d 116 (Me. 2013)(the mother who had joint custodial status refused all efforts to vaccinate the child based on her refusal to accept scientific facts . . . . as a result of these findings, the court concluded that the child had been deprived of necessary health care."); see also In re E.A., 114 A.3d 207 (Me. 2015) ("the parents' initial refusal to vaccinate the twins further confirms their current lack of insight."). In Kentucky, a court held that a child should be vaccinated even when the joint custodial parent had strong religious objections to the vaccine and the father favored it. Burch v. Lipscomb, 2021 Ky. App. Unpub. LEXIS 659 (Ct. App. Ky 11/19/21)(court noted that the health and welfare of the children is this "court's priority even when balanced against the proclaimed religious beliefs of one parent); Benjamin C. v. Nalani S., 2021 Alas. LEXIS 140 (Alas. 11/17/2021)(Alaska Supreme Court affirms court order for vaccinating a child over a joint custodial parent's objection); M.A. v. A.A., 2021 N.J. Super. Unpub. LEXIS 1326 (Sup. Ct. N.J. 2021)(appeals court confirmed trial court conclusion that it was appropriate for the child under a joint custodial agreement to be vaccinated over mother's objection and appointed father as sole guardian for immunization purposes); In re Statler, 2021 Mich. App. LEXIS 2999 (court authorized state agency in neglect proceeding to vaccinate children over parental objection based on registered nurse's testimony that: "benefits outweighed the risks"). Contra see In re Zook, 2021 Tex. App. LEXIS 5643 (Ct. App. Tex. 2021)(unambiguous [*5]language of statute allows either parent to expressly refuse to give consent to vaccination and the appeals court reversed an order to the contrary).

While New York's sister states provide some guidance to this Court, it appears this case poses a new question in New York of whether a court, faced with a disagreement between the parents over the necessity for a vaccine, can intrude into the family unit and order the child vaccinated. One recent New York case, authored by my colleague Justice Matthew Cooper, broached a somewhat equivalent circumstance. In C.B. v. D.B., 2021 NY Misc Lexis 5111 (Sup. Ct. New York Cty 2021), the question was whether the Court could condition visitation by a parent on their submitting to a COVID vaccine. The Court did not address the specific issue present here — whether the Court could order vaccination of an eligible child over a parent's objection. But, the logic of the New York City court reverberates to upstate:

New York is transitioning towards a "new normal" where 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. The widespread availability of three different no-cost COVID-19 vaccines, with their continued, proven efficacy in preventing the spread of the virus and the development of serious symptoms in those who contract it, has resulted in the expectation that one must be vaccinated in order to participate meaningfully in everyday society.

Id at 6. After considering the options, the Court restricted the non-vaccinated parent's access to the child until they were vaccinated or underwent regular testing. Id at 10.

In other cases, the New York courts have refused to find a breach of a joint custody agreement when one parent had a child inoculated for common childhood illness without the other parent's approval. Heffer v. Krebs, 196 AD3d 684 (2d Dept 2021)(the parent could not prove prejudice even if the inoculation occurred without a joint custodial parent's approval). In another instance, a father objected to a measles vaccine because of risks of brain damage and other complications but the Court noted that these complications were the "very complications attendant to contracting the measles" and granted the mother the authority to vaccinate the child. Matter of L.N. v V.V., 2019 NY Misc. LEXIS 7088 (fam. Ct. Kings Cty 2019); see also Matter of Seacord v Seacord, 81 AD3d 1101 (3d Dept 20110 (father with joint custodial rights nonetheless acted against his daughter's best interests by refusing to consent to administration of a vaccination intended to prevent cervical cancer recommended by her pediatrician),

In this case, the 11-year-old child is eligible for the vaccine. She wants to participate in the same vaccine as her older sister and her mother. There is no dispute that the father is full vaccinated. The dangers posed by the unvaccinated child are easily forecast. Not only would the child be more likely to contract the disease but there is a reasonable prospect that the severity of the disease encountered by the child may be enhanced without vaccination. If she has mild COVID symptoms, the incapacity may only last a few days with normal flu-like symptoms. If the illness is more severe, then an extended stay at home, away from school, may result, much less a visit to the hospital. Loss of sense — especially taste and smell — are well-established complications of any form of COVID and may persist beyond recovery from the flu-like [*6]symptoms of the disease. If the child is unvaccinated, she runs a greater risk of exposure during her time at school, when large numbers of students, with varying levels of vaccination, will be mulling around within her orbit. If the child catches the virus, she runs the risk of spreading it to either the father or the mother's household, even if all of its members are vaccinated. She also runs the risk of spreading it to others outside the immediate family, including relatives and family friends, a possible risk highlighted by the Court in C.B. v. D.B., supra at 6.

The father's objections can be summed up simply: wait and see what further research demonstrates on both the efficacy of the vaccine and the impact of both short and long-term side effects. But, this Court is unwilling to kick this can down the road. It could be years before any researchers have exacting accounts of either the short or long term consequences of the administration of this vaccine on 11-year-old girls with this child's physiological makeup. The notion of waiting only amplify the risks to this girl. The Court can take judicial notice that Monroe County, this week, declared a state of emergency, as hospitals were filling with ill COVID patients. The County Department of Public Health said that there were 2,643 new cases reported since last Monday, November 22. The seven-day rolling average of new cases in the County in which the child lives is 378 new cases per day, the 2nd highest rate of any region in the New York State.[FN4]

Waiting — to be "sure," as the father asks — is simply untenable, when the specter of a killing or incapacitating disease is swirling in the environment surrounding this young girl. The wait, requested by the father, could extend beyond the term of the virus, as scientists may never catch up to this ever evolving and elusive virus and variants. The scientific certainty that the father seeks about complications from the vaccine as a condition to agreeing to permit administration of the vaccine is not the horizon. This Court, weighing the child's best interests, cannot wait for the vaccine's side effects or efficacy to be scientifically established beyond a reasonable doubt or even to the father's satisfaction. The imminent risk of contracting the disease is too high and the consequences of acquiring it potentially too dire.

As my colleague Justice Cooper said, the paramount concern when making any parental determination in which the Court substitutes its judgment for that of either parent, "is the best interests of the child, under the totality of the circumstances." Id at 3; see Eschbach v. Eschbach, 56 NY2d 167 (1982). In reaching a conclusion in this case and with this young lady, this Court declines to jump into the world of vaccine debate and consider the evidence — pros and cons on the efficacy of either the Pfizer or other vaccines — from government websites or other sites. The vaccine and its effectiveness is not on trial before this Court.

The best interests of this child are served by participating in the vaccine program. The mother wants the child vaccinated: the child agrees. So does her counsel. The father, already vaccinated, acknowledges that vaccines are important, [*7]even though he questions potential complications and side effects in its application to his youngest daughter. The child's pediatrician, selected by both parents, endorses an immediate vaccination. So does this Court.

The mother also requests attorneys fees for this application, arguing that the father's rejection of vaccines is unwarranted. The Court declines to award fees. As noted, the father's objections are not without some rationale in the science, as current studies demonstrate the existence of potential complications in administering the COVID vaccine to children. The Court, while somewhat perplexed that an accomplished scientist and professor would oppose a child vaccine authorized by the CDC and universally encouraged by state and local physicians and other health officials, nonetheless refuses to impose fees on a parent who argues that he is seeking, in even in overabundance of caution, to protect his child's interests.

The mother is ordered to schedule an immediate appointment for the child to be administered an age appropriate vaccine from the pediatrician or her office staff as soon as possible.

SUBMIT ORDER ON NOTICE. 22 NYCRR 202.48.

December 3, 2021

Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1:Centers for Disease Control and Prevention (CDC) recommends COVID-19 vaccination for everyone 5 years of age and older to help protect against COVID-19 (two doses of vaccine). COVID-19 vaccine and other vaccines may be given to your child on the same day. https://www.cdc.gov/vaccines/parents/by-age/years-11-12.html

Footnote 2:The father, in presenting this evidence, utilized information from a series of websites, including the Centers for Disease Control and Prevention. Other courts have taken judicial notice of the CDC website. People ex rel. Squirrell v Langley, 68 Misc 3d 498 (Sup. Ct. Putnam Cty 2020); see also Seymour v. Seymour, 2021 ME 60 (Me. 2021). This Court similarly takes judicial notice of the CDC website, in as much as the mother has not contested the father's rendition of the CDC information on potential complications in the administration of the COVID vaccine to young children.

Footnote 3:This Court dispensed with the usual credentialing of the child's pediatrician as an expert. Both parents has selected the pediatrician and there was no question by either parent about her competence to opine on whether this child should be vaccinated.

Footnote 4:See https://www.wxxinews.org/local-news/2021-11-29/monroe-county-reports-270-additional-covid-19-cases-and-7-more-deaths (visited on 12/2/21)