In The News

In The News

Saturday, May 29, 2021


By Michael Nichols
Categories: Family Law

The country seems to be awash in debate over vaccines for the COVID-19 novel coronavirus. It seems as if people have to choose between the shot or 2 shot dosages or wearing a mask or “fudging” when out in public. Businesses, both retail and office, have to decide whether to continue to require mask-use or require disclosure of vaccine status a/k/a play the “vaccine police.”

What if 2 parents who are not together disagree over whether to let their otherwise eligible child or children get vaccinated. “We are starting to see these cases coming in at the Nichols Law Firm,” says attorney Jackee Moss. Mr. Moss focuses his practice on family law and he is researching the issues.

It is important to note that first, the court will have to analyze the status of the established custodial environment (ece). The ece is important because under Michigan law, it is not to be disturbed absent some really good reasons/facts. The idea is to try to maintain stability for kids. So question number 1 is whether the parties share "joint legal custody" - which is the fallback presumption in most divorce cases and confers on each parent the right to have decision-making input on major life questions such as this one.

Mr. Moss says an unpublished case, Mattheson v Schmitt may be instructive even though it is not binding. “Remember that unpublished cases are not binding on courts but the Court of Appeals panel in Mattheson did a thorough job analyzing the concept of ece and also analyzed the recognized adverse effects of vaccinations,” he says.

In Mattheson, the court ultimately held that the person who had the child most of the time physically, could decide to have the child – who was about 5 – vaccinated even though the other parent disagreed and the parties shared joint legal custody. The court said

“ Even accepting as valid and accurate plaintiff's contention that the child bears some predisposition to incurring an autoimmune disorder because of her family history, this attenuated risk, in and of itself, simply does not outweigh the significant benefits that would inure to the child by protecting her from the threat of serious and life-endangering diseases in the population. Put another way, the threat of harm to the child by exposing her to vaccines that could potentially trigger an autoimmune disorder is speculative, and the record does not otherwise demonstrate that the child would be put at risk of harm by receiving vaccinations.”

 Matheson v. Schmitt, 2019 Mich. App. LEXIS 7389, *22

That was the main holding of the court on the vaccine, directing the trial court to decide if a new pediatrician was needed because the parties could not agree on a pediatrician, who would then determine whether it was in the best medical interests of the child to avail herself of vaccinations. Of course, this case was pre-pandemic in 2019 and the issues here were the standard measeles-mumps-rubella-type vaccines that most children are given before they start school.

There is a case from January, 2021, In re Smith. The court of appeals actually dismissed the appeal, which was a factual-twist on our debate. In that case, the probate court took jurisdiction over the very young child because the mother was unfit. The mother also objected to the child getting vaccinated but the father wanted the child to get vaccinated. The trial court ruled it could not prevent the child from getting vaccinated because it had no jurisdiction over the father. In between the filing of the appeal and the oral argument, the mother had progressed enough that the probate court dismissed the case and the parties/parents were working toward resolving their differences on the vaccination issue.

Judge Swartzle recognized that the Court of Appeals dispositively recognized the authority of trial courts to order vaccinations/prevent vaccinations in the case of In re Deng, 314 Mich App 615 (2016). The takeaway from Deng is that the court very carefully analyzed the right under the constitution to exercise religious freedom and raise our children and that this right is not eroded just because parents are far from “model” parents. However, the public health code requires that parents prove that their children are vaccinated before enrolling them in school in Michigan (MCL 333.9208(1)) and further, when parents are considered “unfit” to the point that the Child Protective Services successfully petitions a probate court for “jurisdiction” – a probate court then has broad powers to order various things (to be at the discretion/direction of a caseworker) including vaccination. The Court of Appeals did seem to acknowledge the constitutionality of that requirement under the Public Health Code as a balancing of our rights as parents vs. the state's interest in protecting public health and welfare.

The takeaway from our research so far is that the question of whether or not a court will order a vaccination from COVID-19 or any other modern day malady is what we find with most legal questions: the law is going to be applied to a large degree based on the judge who you draw in your case.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.