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Family in Crisis – Shot or no Shot – Booster or No Booster – COVID Issues Continue

For family in crisis, the impact related to the pandemic have mutated in families like the virus itself. At the start of the pandemic, family lawyers and family courts were faced with the inability of distressed families to work though issue relating to covid exposures, limiting exposures and quarantines.  One side would allege that the child could not go to the other parent due to exposure or actually having the virus. The other parent would allege that this was a ruse to avoid having to exchange the child. As so it went.  Court motions were filed. Courts struggled with this and, of course, the kids suffered.  Over time, these disputes went accelerated or declined proportionally with the covid exposure rate.

Then we had the issue of in school v virtual school- which is best for the child, who gets to make the decision and on and on. Again, this issue was a rollercoaster ride for the children while their parents argued and the attorneys and judges tried to figure it out. The hope was that with the advent of vaccinations and return to in-person school, we could move past this issue and return to normal. But not so quick.

Now the issues are should children get vaccinated? Which children should get vaccinated? What sort of vaccination should then get and on and on? We start with the right of parents to make medical decisions for their children. The hope and goal is that the parents will work together what is best for their children. That is a goal but often not the reality.

So, what are examples of the current issues and the responses of the lawyers and court?

Issues:

  • Should a child be vaccinated at all? The CDC and the majority of health care provided say yes. A smaller but vocal group believe otherwise and have their sources and authorities to support their position.
  • Should young children be vaccinated? Again, The CDC and the majority of health care provided say yes. A smaller but vocal group belief otherwise.
  • Should a child get a booter shot. Again, the same divisions appear.
  • What sort of public exposure is okay for kids? Can they or should they go to concerts and sports events and school events? Do they have to wear masks? More fertile grounds for disputes.

Courts and Attorneys Response:

Attorneys: The attorneys have the obligation to argue for their client’s position regardless of what they personally believe. But a good family law attorney will try to advise the client and gauge the argument based on what the judge is likely to do. They look to the history they have with the court and the local political climate that influences the local judges.

Attorneys Acting as Guardian ad Litem: the GAL has to make a recommendation as to what is in the child best interest if the parents cannot agree. Consideration has to be given to many factors including the age of the child, wishes of the child, wishes of parents and the law that applies to custodial decision making. So should the GAL make a recommendation of his/her believe what is in the best interest of the child and that the court make that determination? Or, should the GAL recommend that the parties follow the advice of the child’s doctor? Or, should the GAL recommend that the court appoint one of the parents to make these decisions? Again, there are not good and firm answer here. As always, it depends!  What is the judge likely to do? Is the healthcare provider willing to be put in that position and if so, will that damage the relationship between the provider and one or more members of the family? What makes one of the parents more fit than the other to make this decision? These are difficult considerations.

The Courts: The bottom line is what will the judge do? The judge face the same challenges that the GAL’s face only the judge has the final word. So, does the judge decide what he’/she feels is the best course of treatment for the child? Or, does the judge decide that parents have to follow the advice of the healthcare provider? Of does the judge decide which parent is best able to make the decision on healthcare? The answer is that there is no consensus on this.

There is an ongoing national debate on what is the appropriate way to decide this issue. And, there is a lack of consensus in the nation, with the states and even at the local county level how to address these issues.  The debate on Covid issues is similar to other issues in family court concerning making decision on things like school choice, other healthcare decisions, extracurricular activities etc.  Judges in the same counties often do not agree. But Covid is a hot button issue right now.

Does the court delegate the decisions to their parties, like the doctors? That takes both parents out of the decision-making process and seems like that would be in the best interest of the child. Some courts have done this. But be careful of what you ask for.  In these cases, one on the parents will likely be at odds with the doctor and that will damage the relationship between the two. Further does the doctor even want to be involved in all this? Most want nothing to do with courts.

Does the court make the decision? Or does the court appoint a third party, like a special master, to make these decisions? That certainly takes it out of the hands of the parties and the doctor. Courts have done this. But these are parental decisions to make. The courts do not know the children, do not know the family and certainly are not experts in healthcare. And where does this stop? Does the court have to make every major decision for the family? What even is a major decision?

Or does the court determine which parent is best able to make these decisions and give that parent the last word? Again, courts do this. But how to you judge which parent is best able, specially in these times with there is ongoing disputes about what is the best course. Is the parent with authority able to reasonably consider the position and beliefs of the other parent? Or will the parent with authority just do what they want and the other parent can be damned?

Our firm, usually acting as the GAL for the children but also as advocated for a parent, have had cases involving all three approaches. None of the results were satisfying to everyone. No surprise there. As you see, none of this is easy. Covid has thrown another thing to fight about into the mix. As a general principal, our believe is that these are parental decisions to be made. Third parties like doctors should not be put in that position. Courts do not know better than anyone else and only issues orders and the parties suffer the consequences. So that leaves it to the parents and if they cannot agree, one of the parents should be designated to make the decision with, hopefully, requirements that there be consultation and reasonable consideration of the other parents’ position. Will that always happen? Of course not. But we feel this the best of the several not good choices.

  • AUDIO: Richard and Eric Hart Interview 10/26/20 Attorney Arthur

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