J.F. v. D.F.

74 Misc.3d 175

160 N.Y.S.3d 551

J.F., Plaintiff,

v.D.F., Defendant.

Index No. I2012001795

Supreme Court, Monroe County, New York.

Decided on December 3, 2021

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 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 and 17 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.¹

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.² 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 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.³ 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 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 WL 5514656, 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 , 17 F.4th 266 (2d Cir. 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 WL 5445463, 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 A.D.3d 684, 152 N.Y.S.3d 467 (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, 108 N.Y.S.3d 761 (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...