I have written previously about children and COVID-19 vaccinations and now that it is almost back-to-school time, a quick update is in order. One of the concerns for lawyers when the COVID vaccination issue emerged was the lack of precedent from the appellate courts of Pennsylvania. While there were a few cases on vaccinations in general, there was nothing specifically on COVID-19 vaccinations. Lawyers were going to court on this issue with as much medical and scientific information as he or she could find, but nothing to legally support the position taken either for or against COVID-19 vaccinations.
Several Pennsylvania county courts have since issued opinions on the issue and, as far as I am aware, the parent seeking vaccination has prevailed in all of the reported decisions. In granting limited sole legal custody to obtain vaccinations, those decisions rely on either testimony from the family pediatrician, or the court takes what is called “judicial notice” of the various press releases available on the websites of the United States Center for Disease Control, the Food and Drug Administration, state and local health departments, the American Medical Association, and the American Academy of Pediatrics. The only state-wide appellate decision on the vaccination issue of which I am aware is Bailer v. Bailer, No. 428 EDA 2022 (Superior Court, May 18, 2022). That case comes from Chester County, Pennsylvania, and deals with the issue of whether an appeal in that particular case was “moot” or not.
Specifically, the mother went to court in Chester County and was given limited sole legal custody to have the parties’ two children vaccinated with the BioNTech COVID-19 vaccine. The mother prevailed and the father appealed. Immediately after the hearing, the trial court gave mother the right to get the children vaccinated while in a later opinion and order gave the mother the right to get the children vaccinated and to have the children receive all “follow up vaccinations for COVID-19.”
Since no stay of that order pending appeal had been issued, the mother did what any lawyer would suggest, got her children vaccinated as soon as she could.
The father’s appeal raised two issues, allowing the children to be vaccinated and mother being granted the ability to have the children receive vaccination booster shots at a future time. The Superior Court read the trial court's order and opinion as allowing the mother to have the children receive both doses of the BioNTech vaccine and no boosters since children in this age group, five to eleven years of age, are not approved for any booster and, more importantly, since the children had already been vaccinated, the appeal was found to be moot and dismissed.
In summary, it is necessary to get court approval to get children vaccinated for COVID-19 when the other parent objects; however, once a parent has filed a petition and had a hearing before the court, the court is most likely to approve vaccination for the parties’ children and Pennsylvania’s appellate courts are not interested in disturbing those decisions.
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