A few weeks back I authored a blog post on the issue of child custody and COVID-19 vaccinations. At that time, I stated that it was difficult for any lawyer to predict how a particular judge would rule on a request by a parent to vaccinate a child over the other parent’s objection. Now, at least in Chester County, Pennsylvania, we have some direction. In an Opinion and Order dated October 5, 2021, the Honorable Mark Tunnell of Chester County’s Orphans’ Court addressed the vaccination issue. There are some distinguishing facts but for family law practitioners and parents, the analysis Judge Tunnell uses is of significant interest.
The case is In the Matter of A.C.G., an Incapacitated Person, Court of Common Pleas of Chester County, Orphans’ Court Division, No. 1517-0336 (October 5, 2021). This is a guardianship case involving a 31-year-old woman with down syndrome. Therefore, it is not a child custody case. A.C.G.’s parents are divorced and are her co-guardians. The father sought to have her vaccinated against COVID-19; her mother opposed. There was a three-day hearing in Orphans’ Court, the division of the Court of Common Pleas that handles guardianships. The father not only testified himself but provided testimony from A.C.G.’s primary care physician, cardiologist, neurologist, and expert witness who is a doctor and medical professor specializing in infectious diseases and who has done extensive research on the treatment of COVID-19. The mother testified and provided testimony from two additional doctors.
In granting the father’s petition and directing that A.C.G. be vaccinated, Judge Tunnell first goes through the history of vaccinations in the United States, as well as the little bit of law there is on vaccinations. He starts in Massachusetts in 1809. The Judge then jumps ahead to a United States Supreme Court case from 1905 on the constitutionality of mandatory vaccination statutes. The Judge acknowledges that there will never be 100% consensus on vaccinations, but he quotes the United States Supreme Court by stating that real liberty for all would not exist if everyone could assert his or her own liberty interests regardless of the injury they may cause to the community as a whole.
Based on the list of witnesses above, it is easy to see the outline of the father’s case.
The mother’s case was based on the mother’s religious beliefs, the rush to the approval of all the COVID-19 vaccines, and the testimony from two doctors saying that A.C.G. was healthy other than for her down syndrome, and if she were to contract COVID-19, there are holistic treatments available.
Although this was a guardianship case and not a child custody case, in this situation the court was charged with determining what would be in A.C.G.’s best interest, the same as in a custody case. The court would not address the mother’s religious convictions and discounted the holistic approach to treating a COVID-19 patient. The court found that 97% of recent COVID-19 hospitalizations have been of unvaccinated patients and the unvaccinated account for more than 99% of the COVID-19 deaths. Furthermore, the Court found that individuals with down syndrome have a four-fold greater risk of hospitalization and a ten-fold risk of death from COVID-19. The court went on to find that the Pfizer vaccine is the safest for A.C.G. and posed the least risk of side effects.
Will Judge Tunnell’s Opinion in the A.C.G. case mean that every dispute over COVID-19 vaccinations in Chester County will come down on the side of the party seeking vaccination? No, it does not. Facts may be distinguishable and there are always more factors that may be considered.
Also, this is a decision of a trial level court in an Orphans’ Court matter, certainly influential on a family court judge, but not a binding opinion. That being said, Judge Tunnell’s analysis is instructive for all family law attorneys and their clients faced with the COVID-19 vaccination issue.