Opinion
CK14-01551 Petition 21-29451
09-14-2022
A. R., Petitioner, v. J. A., Respondent. In The Interests Of S. A. (DOB --/--/12)
Petition for Modification of Custody
ORDER
James G. McGiffin, Jr.
Before the HONORABLE JAMES G. MCGIFFIN JR., JUDGE of the Family Court of the State of Delaware:
The Court has before it a Petition to Modify Custody filed by A ----- R ----- (Mother) against J-- A---- (Father), in the interests of the minor child, S ------- A----, born --- --, 2012. The Court held a Zoom hearing on August 24, 2022. Father appeared self-represented. Mother appeared represented by counsel, Edward Curley. The Court reserved decision. This Order memorializes the Court's decision.
The parties operate under the July 25, 2017 Order entered after a hearing on the merits. The Order generally places the child with Mother during the school year and requires the parents to share school breaks. On December 14, 2021, Mother filed a Petition to Modify Court Order, now before the Court.
A summary of testimony.
Mother
Mother lives in a home with her husband, the child, and the child's four sisters. Mother testified that she and the child tested positive for COVID-19 during this pandemic. Mother is concerned for her own well-being and that of the child's new-born sister because the child is not vaccinated against COVID-19. Mother has a compromised immune system, having undergone surgery recently. Mother also uses blood-thinning medicine for a pulmonary embolism.
Mother reported the child missed nine days of school due to the special COVID-19 protocols applicable to unvaccinated students. The child also missed in-person piano lessons and several swimming practices and meets because of her exposure to the disease.
The swim team requires a 5-day layoff for any unvaccinated member who is exposed to COVID-19, followed by a negative test result.
Mother consulted the child's pediatrician about addressing the child's safety during the pandemic. The child's pediatrician recommended the COVID-19 vaccine. All the child's siblings are vaccinated, except the new-born, who is not eligible.
Mother spoke with Father about vaccinating the child. Father will not consent. Mother encouraged Father to speak with the pediatrician about his concerns. Father was unmoved after his consultation with the doctor.
Father
Father insists that he will not consent to the vaccination for the child yet because he is not convinced the vaccination is effective. He implied that when he is satisfied that the science behind the vaccine justifies its administration to children, he will consent. Father observed that the recommendation of the Centers for Disease Control and Prevention (CDC) are evolving. He argued for a "wait and see" approach, anticipating that the CDC will finalize a recommendation.
Father speculated the child no longer will be required to miss time from school or sports with the new CDC guidelines when she comes in contact with a person with COVID-19. There is no evidence in this record that the child's school or sports teams will change their COVID-19 protocols to match the new guidance from the CDC.
Father worries the child might have an adverse reaction to the vaccine. He argues that risk of a bad reaction is unjustified in light of the low risk for children experiencing severe reactions to COVID-19, as reported by the CDC. Father argues it is not necessary for the child to be vaccinated since she has a low risk profile. And since the child has no underlying health conditions but can still spread COVID-19 even after vaccination, the vaccination will have no positive effect.
Child Interview
On August 24, 2022, I interviewed S ------- . This was a Zoom conversation. She appeared fairly comfortable in the zoom setting, but a bit less comfortable with the subject of our conversation.
S ------- is 10 years old and excited about the start of school this year. She has an interest in band, so we talked a bit about the joys of playing a musical instrument.
S ------- knows that the COVID-19 vaccine helps prevent contraction of COVID-19. She is familiar with the history of the disease. She believes the COVID-19 vaccine is a safety measure. She has discussed the vaccine with both of her parents, and she knows that her parents disagree about the effectiveness of the vaccine.
S ------- is certain that she wants the vaccine.
ANALYSIS
The Court determines the legal custody and residential arrangements for a child by examining the best interests of the child. In determining the best interests of the child, the Court considers all relevant factors including:
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interests;
(4) The child's adjustment to his or her home, school and community;
(5) The mental and physical health of all individuals involved;
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
The father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare and education. Each has equal powers and duties with respect to such child, and neither has any right, or presumption of right or fitness, superior to the right of the other concerning such child's custody or any other matter affecting the child. If either parent should die, or abandon his or her family, or is incapable, for any reason, to act as guardian of such child, then, the custody of such child devolves upon the other parent. Where the parents live apart, the Court may award the custody of their minor child to either of them and neither shall benefit from any presumption of being better suited for such award. 13 Del. C. § 701.
Mother seeks decision making authority on question of the child's vaccination against COVID-19 and its variants. Father opposes the adjustment of authority as an unwarranted usurpation of his parental authority. Factor one is neutral.
The child is certain she wants the vaccine. Factor two favors Mother's position.
The child has a good relationship with her maternal sisters. The child interacts positively with Mother's husband. The child spends quality time with Father and those in Father's family. Factor three is neutral.
The child is adjusting to school, but the child's vaccination status makes the adjustment more difficult than it would be if she were vaccinated. After a COVID-19 exposure, the child missed several days of school and her foreign language progress was affected. At home, the child was required to quarantine from Mother and her sisters because of her close contact with COVID-19. Factor four favors Mother's position.
The child is enrolled in a Chinese language immersion program.
Members of Mother's household have compromised immune systems. Mother's household members who are eligible are vaccinated. Several members of Father's household have opted against vaccination. The child is more vulnerable to the disease in Father's household. Factor five favors Mother's petition.
Both parents have complied with this Court's order and the statutory mandates for parents. Factor six is neutral.
There is no evidence of domestic violence in this family. Factor seven is neutral.
There is no evidence of relevant criminal history for either party or other members of their households. Factor eight is neutral.
Mother consulted the child's pediatrician on the question of vaccination. Mother relies on the doctor's advice. Father, too, consulted the pediatrician, but was not persuaded to the doctor's point of venue because the doctor did not exhibit "enthusiasm" about the vaccine. Father, instead, relies on his own reading of the information made available to the public by the CDC. Despite his embrace of the CDC information that supports his argument, Father discounts the recommendations of the CDC, which favor of vaccination for all people, including children, and substitutes his own judgment that the vaccine increase the child's risk with no potential reward. Father's control of the child's medical care has become more important than the child's welfare. Also significant is that the child spends more time in Mother's household and under Mother's care. These facts favor Mother's position.
"CDC recommends COVID-19 vaccines for everyone ages 6 months and older, and COVID-19 boosters for everyone ages 5 older, if eligible." Petitioner's Exhibit 4.
The evidence received shows Mother's approach to the COVID-19 issue is consistent with the best interests of the child, and Father's approach in inconsistent with the child's best interests. The Court finds it is in the best interest of the child for Mother to have authority over decisions related to COVID-19 and any vaccination designed for the disease and its variants.
CONCLUSION
IT IS FURTHER ORDERED that Mother shall have the authority to make the decision about any vaccination for COVID-19 and its variants.
IT IS SO ORDERED.