I previously blogged about parenting time restrictions due to vaccination issues “No vaccinations, no parenting time”. The problem hasn’t gone away and it won’t be for some time. The reality is that while the COVID-19 pandemic seems to be developing rapidly (that old adage…days are long but years are fast), the law is moving much more slowly. To the extent that hearings are required to determine whether a parent/child should be vaccinated, it can take months from the filing of the initial petition to the hearing, then more time for the decision, then even more time for the appeal, which may then result in the solidification, modification, or modification of the law or otherwise shape the issue for future cases. Meanwhile, new cases are emerging in various jurisdictions that may guide how cases are handled in other states, including New Jersey.
In addition to my blog post above, this question is a hot topic of discussion. It usually boils down to two options, in my opinion, including scheduling a full (evidence) hearing where the Court takes testimony from medical experts, and/or even the child’s pediatrician, regarding the medical positions taken by each party. That’s because a letter from a doctor, or an impression on the Internet, is just hearsay. I also discussed a potential alternative, which I did not expect to be accepted so quickly by the trial courts, which is for the trial court to take judicial notice that the CDC recommends vaccination (c that is to say: the fact is so well known, that it cannot be denied or disputed; thus, the Court takes cognizance of it without the testimony of a person from the CDC and relies on it within the framework of its factual findings).
So far, plenary hearings have been scheduled as scheduled. More recently, however, the issue of judicial notice has come to light in a Maine case involving vaccinations. Although the question is not regarding the COVID-19 vaccine, the issue is timely and the reasoning can be applied to COVID-19 vaccine cases.
Specifically, in Seymour v. Seymour, a father appealed a trial judgment in which the Court not take judicial notice of vaccine information available on the CDC’s website, as well as allege that “the court did not prioritize the safety of children or provide an explanation when changing the schedule of contacts and assigned final decision-making authority over education and medical matters” to the mother.
In a somewhat surprising decision, the Court of Appeal agreed that the trial court abused its discretion by failing to take judicial notice. Less surprising is their agreement that the Court of Appeal agreed that the trial court had failed to adequately explain his changes according to the father’s argument. This blog will address the issue of judicial notice of the case.
In this case, the parties were recently divorced in 2018 and their children were born in 2014 and 2017. They shared parental rights and responsibilities (ie: joint legal custody – joint decision-making authority) and the mother was parent of primary residence. In April 2020, at the height of the pandemic, the husband sought to change the divorce decree when the mother objected to her children being vaccinated and had not ensured that either another child sees a pediatrician or a dentist, and objected to their son seeing an occupational therapist. An interim order has been issued, pending a hearing.
The hearing was held in March 2021 (remember what I said above about timing…) to address the issues raised, including the vaccination of their children against childhood diseases. The mother had not, against the advice of their pediatrician. The father testified to his desire to have the children vaccinated and asked the court to take judicial notice of the child vaccination information on the CDC website. The trial court refused, but without expressly providing reasoning, with the Appeals Division assuming it was Michelle’s objection, apparently from what she gleaned from the record.
In its decision, the trial court found neither party credible – another issue I blogged about – and essentially intended that the parties still treat each other “in an appalling manner, which harms the children”. However, he then entrusted the mother with final decision-making in matters of education and medicine, and reduced father’s parenting schedule.
In its decision, the Court of Appeal considered the subject matter of judicial notice and said: “When a court takes judicial notice of information available on a website, it may do so for either of these purposes: solely to find that the information appears on the website or for the veracity facts alleged on the website.(emphasis added). The Court further held that the trial court is required to take judicial notice of facts beyond reasonable dispute – jurisdictional facts – where the party seeking relief has provided the information, which the father has done here.
The Court then discussed whether the CDC’s evidence should be accepted for the factual accuracy of the CDC’s position, and the answer is yes. if it is generally accepted in the scientific community because it is scientific fact rather than just common knowledge. In other words, it doesn’t matter if the general public accepts the CDC’s recommendation, it matters that the scientific community generally accepts it. In this case, the pediatricians the mother consulted agreed that the children should be vaccinated, just as the CDC recommends.
Notably, the Court of Appeals found that information from other scientific courts may be relevant to the issue, citing examples from the Maine Centers for Disease Control, the Food and Drug Administration, the National Institutes of Health, the ‘World Health Organization, American Academy of Pediatrics, and American Medical Association.
Again, while not about the COVID-19 vaccine, the case is directly relevant in terms of judicial notice from the CDC website. If more courts do so, perhaps full hearings could be reduced on COVID-19 vaccination issues, or at least shortened.
In addition to the Maine case, here is a brief update on new COVID-19/family law cases across the country and parent/child, but same theme…get vaccinated:
- According to an LA Times article, in an LA case, a father was warned by a court to get vaccinated or else he could waste parenting time…this comment, taken from the transcript, was made after the parties argued agreed to have their child vaccinated during the settlement. discussions at the courthouse and reported the settlement to the court, in which case the court asked each parent if they were vaccinated. Mom said yes, dad said no, and the court responded with this veiled threat.
- In a New York case, JF v. DF, the court ordered that an 11-year-old child be vaccinated against COVID-19 as requested by the mother and over the objections of the father. The parties in this case have had years of intense litigation. They agreed that their older teenagers (19+17) would be vaccinated, but dad objected to their 11 year old being vaccinated. Unlike the lengthy legal process discussed above, this decision was written about a week after the mother filed her Order to Show Cause in NY. The father did not want the vaccination until it was compulsory for their child as it had not been on long-term trials for side effects and he claimed his daughter would not actually fall sick if she caught COVID-19, as well as potential complications. of the vaccine and the short-term effects that might have prevented the Thanksgiving trip. However, the child’s pediatrician supported the vaccine, as the mother advised the court in her pleadings. Indeed, as expected, the Court had the pediatrician testify, but unexpectedly during the oral argument and not during a hearing of the evidence. The child had an appointed lawyer who was told to speak with her, even though the lawyer had previously only been involved in financial matters. The child has expressed his desire to be vaccinated. In the end, the court determined that the mother wants the child to be vaccinated, the child wants to be vaccinated, the father is vaccinated and recognizes that vaccines are important, the pediatrician approves immediate vaccination.
LA’s comment is about to be inappropriate for the reasons stated in my previous blog post. The Court cannot prejudge a case and determine that a parent is wasting parenting time for not having been vaccinated without having before it an application setting out the positions raised by the parties – here there was none because it wasn’t even a problem on the board it seems. The New York case again raises the importance of hearing from a medical professional – even if it is not a full hearing which I suspect will be up to the Court of Appeals if the issue is raised – and the Court goes one step further by talking to a child. I believe the issue is still ripe for reversal if the Court does not hear a medical professional or take judicial notice of the CDC’s website. If so, however, can a litigant get a vaccine dispute resolved in oral argument, without a hearing, and have the decision protected on appeal? I believe that will happen in the months, if not years, to come.
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