Unvaccinated: Grounds for Removal of Custody?
A Cook County judge in Chicago recently made what has been called an “unprecedented” decision in a family law case.
According to news reports, the parents of an 11-year-old boy were in court in Chicago to address child support. During the hearing, presiding Judge James Shapiro asked the parents if they had been vaccinated against the coronavirus. The boy’s father apparently said “yes”. Ms. Firlit, the child‘s mother, said “no”, explaining that she experienced “adverse reactions” to vaccinations in the past and was advised by a doctor against being vaccinated against the coronavirus. To the shock of the parents and their respective attorneys, the judge summarily entered an order ex mero motu removing the child from his mother’s custody. The court ruled that she could get custody back only when she is vaccinated and can show proof to the court of her compliance.
The issue of custody was not before the court on that day. The parents of the boy had been sharing custody for 7 years at the time of the support hearing. Nobody had requested the court to address custody or to inquire whether the litigants had been vaccinated against the coronavirus. Neither the parents nor their attorneys were aware of the possibility that the judge would abruptly separate the mother and child because the mother was not vaccinated against the coronavirus.
It should be to nobody’s surprise that Ms. Firlit appealed the court’s decision, which was reversed. Ms. Firlit’s procedural due process rights were clearly violated in that she did not receive adequate notice that the court would be addressing custody at the child support hearing.
Beyond the substantive and procedural defects, there are more complicated and nuanced issues arising out of Judge Shapiro’s decision. The fact that these issues are being raised during a pandemic makes it more difficult to resolve them. Does the fact that a parent chooses not to be vaccinated against the coronavirus justify the removal of a child from that parent’s custody? Arguably, Judge Shapiro’s decision was based on concern that the child would likely contract coronavirus if his mom remained unvaccinated. It is well known that the Delta strain of this virus is extremely contagious, so removing a child from a parent’s custody will not prevent the child from contracting the virus from other sources.
What if the custodial parent’s refusal to be vaccinated is grounded on that parent’s religious beliefs or what if the custodial parent’s medical condition is such that receiving the vaccination presents a legitimate threat to that parent’s health? How do you balance the constitutional rights to practice one’s religion with protecting the best interests of the child?
We are now seeing new cases involving variants of the coronavirus that are significantly more contagious. The long-term efficacy of the vaccines already on the market has been called into question. We can expect to see more cases like the Chicago case – and more blogs addressing the “new normal” of family law during the pandemic – in the future.
ABOUT ELIZABETH HODGES
Beth Hodges’ practice is devoted exclusively to family law. Ms. Hodges’ cases involve the litigation, negotiation, and settlement of simple as well as complex financial and non-financial issues and disputes.
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