New York Family Law Blog
While vaccinations have been around for decades, none have caused as much controversy as the COVID vaccine. In C.B. v. D.B., the Supreme Court, New York County, was asked to determine whether a custodial parent require the noncustodial parent to be vaccinated or show a negative test as a condition for assess to the child.
Background
The parties were married in 2015, and their child, a daughter, was born in 2018. After intense marital discord, the mother (plaintiff) commenced this action for divorce in September of 2019. The mother, describing defendant’s history of substance abuse and untreated mental health issues, as well as the significant periods where he had not seen the child at all, sought to have the father’s access subject to supervision. The court agreed.
Sharing plaintiff’s concerns for the child’s safety and well-being while in defendant’s care, the court ordered supervised parental access for the father. The access was to be supervised by the father’s parents. His parenting time was limited to daytime access every other weekend. The mother was the residential parent pending a final determination of custody. The child is represented by a guardian ad litem (the GAL) appointed by the court.
On September 2, 2021, plaintiff, joined by the GAL, made an application for the father and any supervisor utilized for parental access to be vaccinated against COVID-19. The court issued a temporary restraining order (TRO) suspending the father’s in-person access on an interim basis until he was vaccinated. The father objected.
Discussion
The court first noted that it well-established that there is a rebuttable presumption that visitation by a noncustodial parent is in the child’s best interest and should be denied where “compelling reasons and substantial evidence show that visitation would be detrimental to the child.” Matter of Josephine F. v Rodney W., 168 AD3d 486, 486 (2019). In making access determinations, the court must figure out what is in the best interests of the child, under the totality of the circumstances. Marino v. Marino, 183 AD3d 813, 816 (2020).
In this case, the court concluded that in-person parental access by defendant is not in the child’s best interests, and there are exceptional circumstances that support its suspension. Accessing the child while being unvaccinated puts the child at risk. At the time of this case, vaccines were not approved for children under the age of 12, so the child here was not eligible to be vaccinated. While children who do get COVID-19 often experience only mild symptoms, some do become very ill. Further, a child who comes in contact with someone with COVID, puts others at risk, including the mother, the child’s classmates, and their families.
Important to this case is that the child’s preschool requires that teachers, staff, and any parent who participates in pickups or drop-offs or is otherwise involved in any school activity all be vaccinated. Even though the father claims that he wants to be more involved in the child’s life, he refuse to take steps that would allow him to be involved in picking up the child and other school activities.
The court concluded by noting that the analysis comes down which parent’s argument focuses on what is the best interests of the child versus their own personal preferences or interests. The father did not offer any sound reason why he should not be vaccinated or even undergo testing. He argued that it was his right not be vaccinated or tested. On the other hand, the mother sought to protect the health, safety, and well-being of the child.
The court found that requiring the father and anyone regularly supervising his access to be vaccinated against COVID-19 or else undergo regular testing to be in the child’s best interests. Accordingly, it granted the mother’s motion, and the father’s in-person parental access with the child was suspended until he complied with the restraining order. However, the father was permitted to continue to enjoy liberal virtual and telephone access with the child.