Noncustodial Parent Required to Get COVID Vaccine or COVID Test Before Exercising Visitation
From C.B. v. D.B. (No. 308204/2019, N.Y. County), decided Thursday by N.Y. state judge Matthew Cooper:
Throughout most of modern medical history, the advent of a vaccine was almost universally embraced as a means of protecting ourselves and our children from deadly or debilitating disease. In my lifetime, I need only think of how polio was eradicated in this country as a result of the vaccine first developed by Jonas Salk, with other diseases, such as measles, rubella, and diphtheria, having been similarly eliminated.
Then came COVID-19. Fortunately, most people, heeding expert medical opinion, have availed themselves of vaccines that promise not only to protect them and others from the ravages of COVID-19, but ultimately to completely vanquish the virus. Unfortunately, and to my mind, incomprehensibly, a sizeable minority, seizing upon misinformation, conspiracy theories, and muddled notions of “individual liberty,” have refused all entreaties to be vaccinated.
In this ongoing divorce case involving a three-year-old child, the issue of COVID-19 vaccination is now before me. The issue is not one of whether the child should be vaccinated; she is still too young to receive any of the vaccines. Nor is it one of whether I can require an adult to be vaccinated; to do so would stretch the authority of a matrimonial court to unprecedented lengths.
Instead, the issue is whether the [mother], who has de facto custody of the child and is fully responsible for her care and upbringing, can condition the [father]’s access with the child, which is limited and supervised, on [father] and his supervisor being vaccinated, or at the very least, submitting to a testing regimen prior to each of the access periods….
[Mother], recounting [father]’s history of substance abuse and untreated mental health issues, as well as the significant periods where he had not seen the child at all, sought to have [father]’s access subject to supervision. Sharing [mother]’s concerns for the child’s safety and well-being while in [father]’s care, I directed, by an order dated May 13, 2021, that his parental access be supervised by Comprehensive Family Services, an independent parenting services agency. I later modified the order to permit supervision by [father]’s parents.
Although there has yet to be a final determination as to custody, [mother] is the residential parent, with the child living exclusively with her in Manhattan, where the parties lived prior to their separation in 2019 and where the child attends preschool. [Father] lives with his parents on Long Island. His parenting time with his daughter is limited to daytime access every other weekend and continues to be supervised by his parents, mainly his m
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