Can a Judge Order Me or My Child(ren) to Get Vaccinated or Take Away My Parenting Time If Im Not Vaccinated?

 Posted on October 29, 2021 in Divorce

Covid-19 and parenting timeIt’s no surprise that the ongoing COVID-19 pandemic has flooded the domestic relations courtrooms with a flurry of never-before-seen litigation. The courts are dealing with unprecedented issues such as taking parenting time and parental decision-making away from a parent who refuses to get vaccinated or who refuse to vaccinate a child at the age of 12 and older. Specifically, judges have recently ruled on these issues and relied on the “serious endangerment” and “best interest of the child” standard to restrict parenting time and order mask wearing and/or vaccinations of parents and children. Some litigants (and lawyers) argue that judges are forcing their personal beliefs on the parties and/or taking a political stance, while others believe these judges are playing their part in ending the pandemic and keeping people safe.  Regardless of your personal view on the vaccine or mask mandate, the legal question presented is whether the court has the authority to take such action and if so, what is the burden of proof a litigant must meet

Under Illinois law, to restrict a parent’s parenting time, the party seeking to restrict the parenting time must show by a preponderance of the evidence, (more likely than not), that unrestricted parenting time presents a “serious and present endangerment” to the child’s emotional, mental, moral, or physical health. If, after hearing, the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the minor child’s emotional, mental, moral, or physical health, the court may enter orders as necessary to protect the child. This means that the court can enter orders to restrict a parent from seeing his or her child, reduce a parent’s parenting time, take away a parent’s right to make significant decisions for the child, and order supervised parenting time, among other relief. The statute also includes a “catch all” provision that states that a court may impose “any other constraints or conditions that the court deems necessary to provide for the child’s safety or welfare.” In order to restrict a parent’s parenting time, the court has to make actual findings that parenting time with a parent be restricted due to a serious and present endangerment to the child.

Recently, Cook County Judge Shapiro came under scrutiny in the media for taking parenting time away from a mother who was the parent allocated the majority of parenting time after discovering that the mother was unvaccinated. This was done by the Judge sua sponte, meaning “on the court’s own motion,” without any hearing (no evidence or testimony was presented).  In that situation, the attorneys in the case had not filed any type of pleading related to restriction of the mother’s parenting time due to her forgoing the COVID-19 vaccine. According to the mother, she was advised by her doctor not to receive the vaccine because she had adverse reactions to vaccines in the past. Despite the fact that the issue was not pending before the Court, the Judge asked the mother if she was vaccinated at a court appearance via Zoom. When she said that she was not, the Judge ordered that custody of the child be immediately turned over to the father and suspended the mother’s parenting time until she obtained the vaccine.  Later, after the issue sparked much attention in the media, the judge voluntarily vacated his own order.

As discussed in the preceding paragraph, it could be argued that the Judge clearly restricted the mother’s parenting time without a hearing and without findings that the mother’s decision to not get vaccinated seriously endangered the minor child as required by Illinois law. Others could argue that the Judge relied on the “catch all” provision of the statute which allows the Court to put constraints on a parent’s parenting time or implement other necessary measures to protect the child’s safety or welfare as it deems appropriate. However, judges are not medical professionals and without evidence from experts in that field and testimony from the parties, which must be elicited on a case-by-case basis, it is presumptuous for the court to enter these types of orders.

There has also been a plethora of petitions filed asking the courts to modify decision-making responsibility for health care decisions due to parents disagreeing on vaccinating the children.  In order to modify decision-making responsibility, the parent seeking the modification must show that there has been a substantial change in circumstances of the parties and of the children that warrants a modification in accordance with the child’s best interest. It is unclear whether a disagreement on vaccination of the child constitutes a “substantial change” for which the court would have jurisdiction to modify decision-making responsibility and whether it does may also depend on the particular wording of the parties’ parenting agreement.  Further, anytime there is a dispute over a medical decision, and the parties share joint decision making on medical issues, mediation is required

Family law practitioners hope that the Illinois Supreme Court will provide guidance on navigating this unchartered territory. If you have any questions regarding the effect of the COVID-19 pandemic on your parenting time or decision-making responsibilities, please contact one of our experienced attorneys at McSwain Nagle Giese & Rapp, P.C. for a free consultation

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