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In a recent New York state court decision, C.B. v. D.B., a Judge ordered that a father be vaccinated or provide negative COVID-19 tests within 24 hours of any in-person visit with his child. In its decision, the Judge stated that the father already had limited, supervised visitation with the three-year-old child due to substance abuse and untreated mental health issues.

The court reasoned that the child was yet too young to be vaccinated himself, and that the virus could present a threat to the child. Additionally, the court noted that the child’s preschool requires teachers, staff, and parents picking up or dropping off their children to be vaccinated. The Judge also pointed out that the father’s “religious exemption” request fell flat, as he claimed to be a Roman Catholic, but  Pope Francis advocated for followers to be vaccinated. Since he was also given the option to submit to regular COVID-19 testing instead of being vaccinated, the court stated it was not a violation of his rights.

In Chicago, a mother’s parenting time was suspended by a Judge until she was vaccinated for COVID-19, as was reported in the Chicago Tribune. After a story about the case ran on the local news, however, the Judge ended up vacating the order.

Did these Judges overstep their bounds? What is the Court’s power to order a person to be vaccinated as a condition to be met before having custody of a child?

Generally speaking, cities and states are, and have, mandated vaccines in the past. The landmark case in this area is Jacobson v. Commonwealth of Massachusetts, a 1905 case decided by the Supreme Court of the United States in the midst of the smallpox pandemic. According to the Centers for Disease Control, smallpox was a terrible disease, resulting in death for three out of every ten people who contracted it.

In 1796, a doctor named Edward Jenner observed that individuals who had been exposed to cowpox – a similar disease – did not seem to contract smallpox. Dr. Jenner was therefore able to develop a vaccine for smallpox.

In February of 1902, the city of Cambridge, Massachusetts adopted a regulation requiring that all individuals over the age of 21 years old be vaccinated against smallpox, or they would be charged a fine. The Appellant, Jacobson, was the subject of a criminal complaint for refusing to be vaccinated against smallpox.

On appeal, the Supreme Court stated that the State has the authority to enact such statutes under the police power, which is granted by the United States Constitution. It stated that States may “enact quarantine laws and ‘health laws of every description[.]’” as is needed to “protect the public health and the public safety.” The Court clarified that the Constitution “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint” at the expense of injury that may be done to others, and that the community itself “has the right to protect itself against an epidemic of disease which threatens the safety of its members.” The Supreme Court affirmed the lower court’s judgment.

What does this mean in the context of COVID-19? Jacobson has never been overturned, so it is, presumably, legal precedent and remains the landmark case pertaining to the government’s ability to mandate vaccines – at least state and local governments. The decision has been mentioned in dozens of subsequent lower court decisions since the COVID-19 vaccine came out, including a suit by students against Indiana University. In that case, in Klaasen v. Trustees of Indiana University, the United States District Court for the Northern District of Indiana denied the students an injunction to prevent the university from mandating vaccines, citing Jacobson extensively in its decision.

This matter was then brought before the Seventh Circuit Court of Appeals, which affirmed the lower court’s decision, stating given that Jacobson “holds that a state may require all members of the public to be vaccinated against smallpox, there can’t be a constitutional problem with vaccination against SARS-CoV-2” and that “vaccination requirements, like other public-health measures, have been common in this nation.”

Obviously, whether or not an individual chooses to attend a particular university is a very different issue than whether an unvaccinated person loses time with their child due to not being vaccinated. District Court Judges do, however, have a lot of discretion over child custody matters in Nevada.

Chapter 125C of the Nevada Revised Statutes governs child custody orders. NRS 125C.0035(1) states that when a Judge determines the custody of a minor child, their “sole consideration” is the child’s best interests. There are a number of factors the Court considers when it determines what a child’s best interests are. These factors include the child’s wishes, if the child is old enough; which parent is more likely to encourage a relationship between the child and the other parent; the level of conflict between the parents and their ability to co-parent; the parents’ mental and physical health; the child’s needs; the nature of the child’s relationship with each parent; as well as other factors.

Arguably, a Nevada Judge could order that it is in a child’s best interests for both of their parents to be vaccinated. The Court could reason that it is a factor in the parents’ physical health, or the child’s physical needs.

The Judge would, conversely, also need to consider the parents’ rights in that argument. Despite the language of the Nevada statute, the United States Supreme Court has ruled, in Troxel v. Granville, that the interest of parents in the “care, custody, and control” of their children is a “fundamental liberty interest.” Though a more extreme example, the Nevada Supreme Court ruled, in a case about whether to terminate someone’s parental rights, that “[s]everance of the parent-child relationship is tantamount to imposition of a civil death penalty.”

It does not appear there has yet been a Nevada Supreme Court case addressing whether a Judge can order a parent to be vaccinated as a condition to exercising custodial time with a child. Theoretically, a Judge could make such an order if they made a finding that it was in the best interest of a child, but whether that decision would be upheld by Nevada’s appellate courts remains to be seen.

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