Little one Custody and the Anti-vaxxers’ Rights of Dissent | Foster Swift Collins & Smith

This blog has since been updated with additional information

In the course of 2021, various COVID-19 vaccines were brought to market through an accelerated approval process. Those currently available are only approved for those aged 16 and over. However, it appears that children between the ages of 12 and 15 will soon be eligible. When the question of how to raise children safely in the midst of a pandemic is subject to a strong political divide, views about the safety and effectiveness of child vaccination are reliably influenced by the same forces. For the parents, the decision is imminent: should I agree to my child’s COVID-19 vaccination?

While COVID-19 introduced new justifications and concerns, the anti-Vax subculture predated the pandemic. Long before 2020, anti-Vaxxers were freely building relationships with others who may not share their Vax-related beliefs. Vax-distinct couples may well live in harmony until they have a child and are faced with a decision about vaccinating the child.

If a court gains jurisdiction over a custody dispute and transfers custody to more than one party, joint custody exists. Joint carers have the power to make important decisions on behalf of the child and they must do so in a cooperative manner. However, when a custodian belief in vaccination is immune, even from professional advice, problems can arise. Anti-Vax custodians have the right to try their anti-Vax beliefs in court and, accordingly, the power to obstruct the child’s treatment.

To illustrate that on March 6, 2020, when the pandemic hit, the Michigan Supreme Court declined to review a court order requiring a child to be vaccinated. Matheson v Schmitt, unpublished Michigan Supreme Court order, occurred March 6, 2020 (file number 160931). The campaign came about when the parents disagreed on whether their three-year-old daughter should receive standard vaccinations for children. In such situations, the court must order an approach that is in its sole discretion in the best interests of the child.

As stated in Matheson / Schmitt, unpublished opinion of the court of appeal dated November 21, 2019 (file number 347022), Ms. Matheson did not want her daughter to be vaccinated. She protested fearing the child might be predisposed to side effects. Since non-vaccination was a principle of Ms. Matheson’s religion, she claimed that an order requiring vaccination would also violate her human rights. Mr Schmitt, on the other hand, did not buy any of it and wanted the child to be vaccinated.

Of course, the problem boiled down to a battle between medical experts. During the trial, Ms. Matheson’s doctor-expert testified that family history may indicate a likelihood that a child may have a side effect. This 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, the doctor said. However, to the horror of his Anti-Vax client, the expert admitted that there is no test to determine predisposition to rheumatoid arthritis, let alone measure the likelihood that a vaccination will harm a particular person.

As a counter-argument, Mr. Schmitt gave testimony from a doctor who was familiar with the child’s family history of autoimmune diseases but who strongly recommended vaccinations. Another expert for Mr. Schmitt testified that vaccinations were “medically necessary” for the child, citing the fact that whooping cough, which can cause pneumonia or even death in an unvaccinated child, was in Michigan at the time “epidemic proportions” existed. She shared personal anecdotes about the adverse health effects she had seen in unvaccinated children, and noted that the American Academy of Pediatrics recommends all children get a full list of vaccinations.

The court determined Michigan’s best interests and ordered the child to be vaccinated. Mrs. Matheson appealed. The appeals court accepted Ms. Matheson’s evidence on the risks associated with certain gunshots, but rejected her conclusion:

[T]The fact that vaccines can potentially have very serious side effects is beyond dispute, and the child’s family history with autoimmune diseases is also not an issue. The dispositive questions, however, are not whether vaccines can potentially have adverse effects or whether the vaccine industry and pharmaceutical companies are unduly influencing government regulators. Rather, it is a question of whether it is in the best interests of the child to be given any vaccinations, taking into account their physical health. Even if the plaintiff’s assertion is accepted as valid and accurate that the child’s family history has a certain predisposition to an autoimmune disease, that mitigated risk simply does not in and of itself outweigh the substantial benefits that child protection will bring to the child would face the threat of serious and life threatening diseases in the population. In other words, the risk of harm to the child from exposure to vaccines that could potentially trigger an autoimmune disease is speculative and the record does not show that vaccination would put the child at risk of injury.

After hearing the testimony firsthand, the court had discretion to order the vaccinations. The appeals court found the court had not misused that discretion and the Michigan Supreme Court left the verdict undisturbed.

As Matheson illustrates, anti-vaxxers tend to hold their vax-related beliefs high despite medical consensus. In the absence of concrete evidence that a particular vaccination produces a particular side effect in a particular child, few courts will endorse the Anti-Vax parent. It is not enough to demonstrate a general risk for part of the population.

Those in a stalemate with an anti-Vax co-parent should seek help not only with their child’s pediatrician, but also with their family law attorney. It is important to identify the medical risks of delay and develop a legal strategy that adequately reflects the level of urgency. A family law attorney who has the expertise to effectively present the facts and experience to resolve the problem in a timely manner will help you get an outcome that is beneficial to the child