The Rhode Island Supreme Court sided with a father who does not want his daughter to be vaccinated for COVID-19 in the first case of a parental disagreement over a COVID-19 shot to reach the highest court in a state. The court issued a temporary stay preventing the mother from giving the party’s two daughters a COVID shot.1
The family court had ruled in favor of the mother allowing the girls, ages five and eight, to receive the shot, but the father made an emergency appeal to the state Supreme Court before that could happen. On Jan. 26, 2023, a lone justice issued a stay until the full five panel of judges were available to weigh in on the matter. On Feb. 9, the full panel of justices ruled to uphold the stay and ordered a full trial to take place on Apr. 19.2
At issue in this case, Lauren Nagel v. Joshua Nagel, was language in the divorce settlement regarding how the parents would make medical decisions affecting their children. The divorce agreement stipulated that the parents would jointly decide major decisions affecting the health of the children and that, “neither parent shall unreasonably withhold his or her consent to medical treatment for the children or the administration of medication recommended by the pediatrician of the children.”3
Both Girls Have Naturally Acquired Immunity
The children’s pediatrician Colleen Ann Powers, MD recommended that the girls receive the COVID shot, as was her general recommendation to her patients. Dr. Powers had already administered between 1,500 to 2,000 doses of the shot to her young patients. While Dr. Powers claims that the shot prevents severe symptoms of COVID disease, there is no efficacy data and conflicting observational data regarding the product’s ability to reliably prevent infection and transmission of the SARS-CoV-2 virus. The doctor recommended the shot for the girls based on recommendations from the U.S. Centers for Disease Control and Prevention (CDC) and the American Academy of Pediatrics (AAP).4
Both girls have recovered from previous COVID infections, and a doctor testifying on behalf of the father, pointed out that the girls already have naturally acquired immunity. Andrew Bostom, MD testified that the father’s position was reasonable, especially considering that the state of Florida and Denmark do not recommend that children receive COVID shots at all due to the risk of serious side effects and the low risk of serious COVID disease in children.5
Gregory Piccirilli, the father’s attorney, said:
We are just very gratified that the Rhode Island Supreme Court has granted this stay and is willing to listen to our arguments as to why these two young girls do not need the COVID vaccine.6
The COVID Shot Has Become a Hot Topic Among Divorced Parents
The Nagels are among a growing number of divorced parents fighting over whether their children will receive the controversial vaccine. Attorney Hilary Moonay said that her law firm receives at least one call a week from parents on this issue. She said:
For comparison, prior to the pandemic, custody-related vaccine issues were rare. I probably had a total of two or three over the course of my 25-year career before now.7
When faced with divorced parents disagreeing over vaccinating their children, judges will look at what is in the best interest of the child. Factors that help guide the court as to what is in the child’s best interest include the reasoning behind both parents’ decision, specific health risks, and medical expert opinion especially from the child’s treating physician.8 Some courts will assign a Guardian ad Litem to protect the children’s interests. The Guardian ad Litem will examine the facts and make a decision in lieu of the parents about what would be in the children’s best interest regarding vaccination.9
Jessica Kitain, a Philadelphia based family lawyer, explains that tension between divorced parents is at an all-time high. She said:
Everything’s changing. CDC guidelines are changing. Mandatory things are changing. Most people in custody cases operate with a written agreement where terms are set, and they’re clear, and everyone knows what to do. Now that has become a moving target. We’re constantly coming up with new terms.10
Kiilu Davis, an Arizona family lawyer who has been involved in a few court battles where divorced parent couldn’t agree whether their children should get COVID shot said that, while courts do not like getting involved in raising a child, there has been a trend in courts following the CDC’s recommendations toward allowing the parent to vaccinate the children over the other parent’s objection.11 The question remains whether courts will change their position as more and more evidence that the COVID shots are causing severe adverse reactions is revealed.
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