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Child Custody and the Anti-vaxxers' Rights of Dissent

Child with MaskThis blog has since been updated with additional information

As 2021 unfolds, various COVID-19 vaccines have come to market through an expedited approval process. Those presently available are only approved for use on people age 16 or older, but it appears children between the ages of 12 and 15 will soon become eligible. If how we should safely educate children amid a pandemic is subject to sharp political divide, views on the safety and efficacy of child immunization are reliably influenced by those same forces. For parents, the decision is imminent: Should I consent to my child's COVID-19 vaccination?

While COVID-19 introduced new justifications and concerns, the anti-vax subculture predates the pandemic. Long before 2020, anti-vaxxers have freely formed relationships with others who might not share their vax-related beliefs. Vax-diverse couples may well live in harmony until they have a child and are faced with a decision on the child's vaccination.

When a court acquires jurisdiction over a custody dispute and awards legal custody to more than one party, joint legal custody exists. Joint custodians have authority to make important decisions on the child's behalf, and they must do so cooperatively. But when one custodian's beliefs on immunizations are themselves immune from professional advice, problems can arise. Anti-vax custodians have the right to litigate their anti-vax beliefs in court and, accordingly, the power to impede the child's treatment.

To illustrate, on March 6, 2020, as the pandemic was taking hold, the Michigan Supreme Court declined to review a trial court's order mandating a child receive vaccinations. Matheson v Schmitt, unpublished order of the Michigan Supreme Court, entered March 6, 2020 (Docket No. 160931). The action arose when parents disagreed as to whether their three-year-old daughter should receive standard childhood vaccinations. In situations like this, when joint legal custodians cannot agree on important decisions concerning a child's healthcare, the trial court must order a course of action that, in its discretion, serves the child's best interests.

As detailed in Matheson v Schmitt, unpublished opinion of the Court of Appeals, issued November 21, 2019 (Docket No. 347022), Ms. Matheson did not want her daughter vaccinated. She objected out of concern the child might be predisposed to adverse reactions. Since non-vaccination was a tenet of Ms. Matheson's religion, she claimed an order mandating vaccinations would also happen to violate her human rights. Mr. Schmitt, on the other hand, bought none of that and wanted the child vaccinated.

Naturally, the issue boiled down to a battle of medical experts. At trial, Ms. Matheson's physician-expert testified that family medical history can reveal a likelihood a child will experience an adverse reaction. This particular 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, said the doctor. However, to the dismay of his anti-vax client, the expert admitted there is no test to determine one's predisposition to rheumatoid arthritis, let alone measure the likelihood a vaccination will harm any given person.

In rebuttal, Mr. Schmitt offered testimony from a doctor familiar with the child's family history of autoimmune disorders who nonetheless strongly recommended vaccinations. Another expert for Mr. Schmitt testified that vaccinations are "medically necessary" for the child, citing the fact whooping cough, which can lead to pneumonia or even death in an unvaccinated child, was at that time present in "epidemic proportions" in Michigan. Sharing personal anecdotes of the adverse health effects she had observed in unvaccinated children, she noted the American Academy of Pediatrics recommends all children receive a full slate of vaccinations.

Making findings on Michigan's best-interest factors, the trial court ordered the child's vaccinations. Ms. Matheson appealed.  The appellate court acknowledged Ms. Matheson's evidence on the risks associated with specific shots, but nonetheless rejected her conclusion:

[T]he fact that vaccines can potentially cause very serious adverse effects is not in dispute, and the child's family history of autoimmune disorders is also not a point of contention. But the dispositive issues are not whether vaccines can potentially cause adverse effects, or whether the vaccine manufacturing industry and pharmaceutical companies are unduly influencing governmental regulatory agencies. Instead, what is at issue is whether the administration of vaccinations is in the child's best interests, taking into account her physical health. Even accepting as valid and accurate plaintiff's contention that the child bears some predisposition to incurring an autoimmune disorder because of her family history, this attenuated risk, in and of itself, simply does not outweigh the significant benefits that would inure to the child by protecting her from the threat of serious and life-endangering diseases in the population. Put another way, the threat of harm to the child by exposing her to vaccines that could potentially trigger an autoimmune disorder is speculative, and the record does not otherwise demonstrate that the child would be put at risk of harm by receiving vaccinations.

The trial court, having heard the testimony firsthand, had discretion to order the vaccinations. The appellate court found the trial court did not abuse that discretion and the Michigan Supreme Court left the ruling undisturbed.

As Matheson illustrates, anti-vaxxers tend to hold their vax-related beliefs dear despite medical consensus. In the absence of tangible proof that a specific vaccination will cause a specific adverse reaction in a particular child, few courts will side with the anti-vax parent. Proving a general risk to some of the population is not enough.

Those who find themselves in a stalemate with an anti-vax co-parent should not only consult with their child's pediatrician, but also with their family law advocate. It is important to identify the medical risks of delay and design a legal strategy to appropriately reflect the degree of urgency. A family law advocate with the know-how to effectively present the facts and the experience to bring the issue to a timely resolution will help you achieve a beneficial outcome for the child.

Categories: Custody, Lawsuit

Photo of Brett R. Schlender
Senior Attorney

Brett specializes in divorce, custody, child support, spousal support, and other disputes personal in nature. He has settled multi-million dollar marital estates, prevailed in complex asset-valuation disputes, and helped clients tailor divorce settlements to meet their foreseeable needs.

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