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Parental Rights

Court Upholds Allowing Pro-Vaccination Parent to Make Vaccination Decisions for Children

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From Dutchess v. Dutch, decided yesterday (correctly, I think) by the Alaska Supreme Court:

Divorced parents disagree about vaccinating their two minor children. The father wants to vaccinate the children per their pediatrician's recommendation. The mother objects on religious grounds to vaccinating the children…. [T]he superior court issued an order granting decision-making authority concerning vaccinating the children to the father, and the mother appeals. Because the superior court's best interests determination was supported by the record and within the court's broad discretion, we affirm….

Lady Donna Dutchess and Jason Dutch were married from 2008 to 2015. They have two children, both of whom still are minors. Both parents have been involved with the children's medical care. During the marriage, both children received vaccinations. After the marriage ended, neither child received vaccinations until 2021. The children's pediatrician recommended vaccinations in December 2020, but the father declined because "he and mother have not been able to agree on vaccinations." The mother objects to vaccinations on religious grounds.

Amid various disagreements regarding custody, the father filed a motion to modify legal and physical custody and raised the vaccination issue. The superior court held an evidentiary hearing on the matter in November 2020. At the conclusion of the hearing, the court noted that it was taking the vaccination question under advisement and would issue a future order.

In April 2021, prior to the court issuing its order, the father took the children to their pediatrician for vaccinations. In a subsequent hearing, the father explained that he feared his children may have been exposed to tetanus, and noted that he had the doctor give the children only "the most important" vaccines. The younger child received vaccines for hepatitis A; measles, mumps, and rubella; polio; and tetanus, diphtheria, and acellular pertussis. The older child received vaccines for hepatitis A; human papillomavirus (HPV); meningococcal disease; and tetanus, diphtheria, and acellular pertussis.

The superior court issued an order in June 2021 granting the father sole legal custody with regard to vaccination decisions. The order provided that "Father is to confer with Mother [regarding vaccinations]. If there is a disagreement then Father makes the legal decision." The court recognized that the mother has "a [c]onstitutional right to practice her religion" but stated that religious liberty may be curtailed to protect a child's well-being, and specified that "[t]here are health benefits to having children vaccinated." The court quoted language from the United States Supreme Court's decision in Prince v. Massachusetts (1944): "[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death." …

Alaska Statute 25.24.150(c) requires courts to make custody award determinations and modifications in "the best interests of the child," considering, among other things, "the physical, emotional, mental, religious, and social needs of the child" and "the capability and desire of each parent to meet these needs." … The record in this case supports the superior court's finding that granting the father the authority to make vaccination decisions served the children's best interests. The children's pediatrician documented that she "[d]iscussed with father vaccine indications and benefits" and "that not vaccinating his child could result in severe illness, disability and even death." The father testified that he had the children vaccinated because he was concerned about a possible tetanus exposure and that he had the pediatrician administer only the vaccines she felt were "most important." Given the pediatrician's recommendations to vaccinate the children, and the father's willingness to consider those recommendations, the court did not clearly err in its best interests determination. {See, e.g., Shea v. Metcalf (Vt. 1998) (affirming decision awarding medical decision-making authority to a father who wanted his children vaccinated when a board-certified pediatrician testified in support of the father's position); In re A.J.E. (Tex. App. 2012) (relying on a court-appointed physician's advice when there was a dispute between parents over vaccinating the children).} …

We are not convinced that heightened scrutiny [applied under the Alaska Constitution's religious freedom provision] necessarily applies to child custody determinations allocating decision-making authority between parents, nor did the parties brief this issue. We note that several other state courts have concluded that strict scrutiny does not apply to a custody determination between parents with divergent religious convictions. In Bonjour v. Bonjour (Alaska 1979) we addressed a parent's establishment clause claim, explaining that courts generally must maintain neutrality toward parents' religious beliefs or lack thereof when analyzing children's best interests and making a custody determination. We recognized that a court's application of custody statutes in a manner exhibiting "a preference for the religious over the less religious" would essentially place "government on the side of organized religion, a non-secular result that the establishment clause is designed to prevent." Consistent with our analysis in Bonjour, the superior court here properly considered how the mother's desire not to vaccinate the children was contrary to the recommendation of the children's pediatrician and counter to their best interests….

[But e]ven if we were to apply heightened scrutiny pursuant to Frank v. State in analyzing the mother's free exercise challenge, the superior court's ruling would withstand review. The State has "an undeniably compelling interest in protecting the health of minors." Other jurisdictions ruling on vaccine mandates have more specifically held that protecting the health of individuals and the community is a compelling government interest. {See Brown v. Stone (Miss. 1979); Wright v. DeWitt Sch. Dist. No. 1 of Ark. Cnty. (Ark. 1965); Whitlow v. California (S.D. Cal. 2016) ("There is no question that society has a compelling interest in fighting the spread of contagious diseases through mandatory vaccination of school-aged children. All courts, state and federal, have so held either explicitly or implicitly for over a century."); Shepp v. Shepp (Pa. 2006) (explaining that the state has a compelling interest to protect a child from threats to the child's welfare); Roberts v. Roberts (Va. App. 2003) ("[T]he protection of children from harm, whether moral, emotional, mental, or physical, is a valid and compelling state interest.").} Because the State has an interest of the highest order in protecting the children's health that, given the evidence in this case, would not be served by awarding the mother legal authority to make vaccination decisions, the superior court's ruling withstands the Frank analysis….

{The mother asserts that by awarding vaccine decision-making to the father, the superior court violated the regulation governing vaccine requirements for children prior to their admission to school, citing 4 Alaska Administrative Code (AAC) 06.055(f) (2018). The regulation provides an exception if the child "has an affidavit signed by his parent or guardian affirming that immunization conflicts with the tenets and practices of the church or religious denomination of which the applicant is a member." This regulation addresses admission to school, not internal family decision-making. It does not bar one parent vaccinating their child over the objection of another parent. Therefore, it does not apply in this situation.}

 

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  1. If you believe your religion is telling you to expose your children to disease (for no sensible reason), you might have fallen for the wrong flavor of superstition.

    If you call yourself Lady Donna Dutchess, your kookiness likely is compounding the problem.

    1. The court followed the law and was rational.

    2. "Nice to meet you, Lady Donna Dutchess. My name is: Galactic President Superstar McAwesomeville."

      https://www.youtube.com/watch?v=Y5RQNBFKK30

  2. Condensed version of the Supreme Court decision:

    1. The trial judge gets to decide whether the father or the mother is right.
    2. The father is right.

  3. Lady Donna Dutchess - Is that a name or a title?

      1. I will also point out that her ex husband was "Dutch" so naturally she is "Dutch-ess".

    1. Yeah, I couldn't focus on the merits of the decision because I was distracted.

  4. Its a shame that the court has to follow "the science" based on the language in the divorce decree.

    At this point it is pretty well established that the vaccines provide far less benefit than promoted by the various health agencies including WHO and the CDC.
    It is also well established that children have innate immunity which is much stronger than vax immunity.
    It is also well established that the vax are highly ineffective against the current dominant omicron strain.
    It is also well established that the US is on back side of the 3rd major wave and statistcally is unlikely to have another wave of significance (based on prior history of other major pandemics).
    Lastly it is well established the severity level of covid illness for healthly children is extremely low.

    In summary, the demand to vaccinate children is currently being driven by paranoia and not by any medical and/or pandemic science.

    1. 1. This concerns vaccines in general, not just COVID-19 vaccination. So, regardless of what you think concerning the effectiveness of COVID-19 vaccination, it is irrelevant to the facts of the case discussed above.

      2. The COVID-19 vaccinations work and are effective in preventing serious illness and negative effects in both adults and children. Although they are less effective at preventing transmission with the Omicron variant, it is not true to say that they do not have significant benefits.

      3. But even if the above case were about COVID-19 vaccination (which it isn't) and your opinions concerning COVID-19 vaccines were accurate (which they aren't), it still would not necessarily mean that the mom wins and the dad loses. And a best interest of the child analysis may still very well come out in favor of the dad getting his children vaccinated.

      1. Kord -
        1) my mistake on the other vaxes - polio measles mumps, etc should be taken
        2) While most everyone concurs that the "general consensus" is that the vaxes reduce severity. However, based on ancedontol evidence and data coming out of the MN DOH, you should anticipate several studies coming out in a few months that show that vaxes did much less than advertised in reducing the severity of covid.

        3) kord's comment 3 "... opinions concerning COVID-19 vaccines were accurate (which they aren't),..."

        Kord The statements I made are all very solid. I have made several comments on this blog over the last 18-24 months regarding covid that have been contrary the positions stated by CDC which have later proven to be reasonably accurate.

        1. I concur with Joe. However, the bigger point is that there is a legitimate difference of opinion regarding efficacy (and, honestly, safety) of the current crop of COVID vaccines.

          In such cases, government is the last entity I would like to settle the decision.

          1. And worse - the safety.

            The reality is that COVID-19 does not kill kids without comorbidities, such as morbid obesity and immune suppression. There is no rational reason to expose these kids to the dangers of the COVID-19 experimental gene therapies now called “vaccines”.

            1. Unlike the flu , including the 1918 spanish flu, Covid has killed zero children that were not already having serious health problem. Virtually no otherwise healthy child has died.

      2. Over the last several months, the British government stats show that the death rate (deaths/100,00 cases) for vaxed persons are double the death rate for un-vaxed. Your saying " vaccinations work and are effective in preventing serious illness and negative effects in both adults and children" is spreading mis-information.,

        And that's not counting the adverse events from the COVID vax. There is a reasonable argument that for persons without co-morbidities, the vax is at least as deadly as the virus.

        FWIW

        1. "the British government stats show ..."

          Citation required. Put up or shut up.

          1. Zarniwoop - While a disagree with the stats provided by cjcoats, there is emerging data that shows the vaccines do a lot less to reduce the severity of covid infection than is advertised or promoted by the pro -vax proponents.

            Most of the supposed benefit shown in the data is the result of incorrect classification of deaths and hospitalization of breakthrough infections as if they were unvaxed. MN is currently showing the per capita hospital and death rate for unvaxed to be 4x-5x higher during the peak of the Nov-Dec2021/Jan 2022 wave vs the comparable nov2020-Jan 2021 wave. A 4x-5x is highly implausible and show strong indication of dubious coding.

            Expect to see a correction in approx 4-8 months

            1. "there is emerging data ..."

              Citation required. Put up or shut up.

              Seriously? You're making excuses. The data doesn't show what you want to believe, so you latch on to some grifter who claims the data itself is somehow suspect and will miraculously be changed in 4-8 months. Right ....

              1. Healthy skeptic is posting 8-10 studies a week.
                healthy skeptic is also posting detailed data (primarily of MN ) with case rates , hospitalization rates and death rates. Minnesota case, hospitalization and death rates are fairly representative of most other states, falling into the middle of per capita rates by age group which is why the MN data is a good indicator of what is happening in the rest of the country. I am also leery of the studies published/promoted by the CDC since 4 of their most promoted studies on masking (2) , and vax v unvaxed (2) have had serious flaws, mathematical and logic errors.

    2. You have some worthy points about the Covid vaccine for children, but to be fair, this case seems to involve vaccines for (other) diseases that actually are a significant danger to children.

      1. Cheerio and Gormadoc

        My mistake on the other vaxes. Those such as measles, mumps, polio and the other effective vaxes should absolutely be given.

        1. Why?

          Before those vaccines existed, many of those diseases had *lower* rates of hospitalization and death in the same age groups.

          Further, all your false statements work the same way with everything else.

    3. The children hadn't had any vaccinations from 2015 until April 2021. The first hearing was in November 2020. The vaccinations on April 2021:
      "The younger child received vaccines for hepatitis A; measles, mumps, and rubella; polio; and tetanus, diphtheria, and acellular pertussis. The older child received vaccines for hepatitis A; human papillomavirus (HPV); meningococcal disease; and tetanus, diphtheria, and acellular pertussis."
      I do not see COVID-19 anywhere in that list and the children were apparently missing many important vaccines for several years.

    4. "Well established" means Joe read it on some random non-expert's blog who links to lots of unpublished studies and dumb media columns, plus he thinks that partial data from a single state tells all.

      1. David - Everything I state as being well established is very well established and well known by those who have spent time being current on the evolving state of the information. Not my fault your knowledge of covid has limited to the science of zero risk tolerance covid resulting in lots of misinformation.

        Just about everything I have stated over the last 15-18 months regarding covid that you have disagreed with has turned out to be correct.

        1. "well known by those who have spent time being current"

          Citation required. Put up or shut up.

          It's really about that simple. You make the claims, so support it with more than just your say-so.

  5. "The court recognized that the mother has 'a [c]onstitutional right to practice her religion' but stated that religious liberty may be curtailed to protect a child's well-being, and specified that '[t]here are health benefits to having children vaccinated.' The court quoted language from the United States Supreme Court's decision in Prince v. Massachusetts (1944): '[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.' …"

    Um...this seems to suggest that even if there weren't a disagreement between parents, the court would still require the vaccination. That's quite a separate matter, though...

    1. If there weren't a disagreement, the court wouldn't have jurisdiction. Courts aren't in the business of accosting random people on the street to make decisions about their children. It does suggest that the state legislature could potentially mandate vaccines for children, but of course federal laws like the RFRA come into play in such a scenario.

      1. It does suggest that the state legislature could potentially mandate vaccines for children, but of course federal laws like the RFRA come into play in such a scenario.

        Actually, no. Federal RFRA does not apply to state law. City of Boerne v. Flores They would need to rely on a state RFRA, if Alaska has one.

        1. The Alaska Supreme Court has interpreted the Alaska Constitution as providing protection comparable to that provided by RFRAs.

      2. "If there weren't a disagreement, the court wouldn't have jurisdiction" ... until some social worker or school busybody accused the parents of child neglect or abuse, at least.

  6. "Lady Donna Dutchess v. Jason Dutch".

    I bet the story of these two is interesting.

    1. More likely depressing.

      1. Bonjour v. Bonjour sounds fun too.

  7. Wow, a court decision in the land of Palin that is logical, follows the law, looks out for the health of children despite a mother's disregard for their welfare.

    Who would have thought?

    1. Anyone that isn't so bigoted as to think that the fact that someone they don't like comes from a state means that everyone in the state is dumb and evil?

    2. "It is better to keep your mouth closed and let people think you are a fool than to open it and remove all doubt."
      Mark Twain

    3. A decision that did not come from the nearly universal feminist, woke bias of the lawyer profession.

  8. "Lady Donna Dutchess"

    Doesn't she know a duchess is addressed as "Your Grace?"

  9. One understated fact was that the children were vaccinated during the course of the marriage, it was only after the marriage dissolved did the children stop getting vaccinated.

    Not that past practice should be dispositive, but a sharp divergence in parental choices (sometimes towards religion, sometimes away from religion; or other things) can be genuine but it can also be evidence of abusive use of conflict, which is detrimental to the children’s best interest. Getting your kids vaccinated is good, but that shouldn’t be the end of inquiry.

  10. Lost in this is that I don't think this is a religion issue, but a how to raise your child issue. I get that as a general matter we say that parents decide what religion the kids are, and what beliefs they have. But we have seen, for example, child neglect cases when a parent(s) don't believe in medical intervention. They certainly have the right not to go to a hospital themselves, but imparting that on their child has never been ruled as protected as to child neglect laws.

    My point isn't to liken non vaccination to neglect, but to say that there is a difference between the parents religious rights and their imparting the religious beliefs onto the child, that must be intertwined with the right to decide how to raise your child. And specifically when the parents disagree it would be rather odd to say that the religious parent has to win because it is their religious belief. That would just be religious discrimination the other way.

  11. Possible issue with this language:
    "Because the State has an interest of the highest order in protecting the children's health that, given the evidence in this case, would not be served by awarding the mother legal authority to make vaccination decisions, the superior court's ruling withstands the Frank analysis."
    Father was granted custody with decision-making, including vaccination decisions, in June.
    The Court, on the recent cusp of decison-making around the country relating to this issue, nevertheless times this decision release, with broad language.
    What vaccination, again, are we discussing? Of course not ultimately the MMR and tetanus, notwithstanding the particular mother involved. Perhaps we are discussing conflating the past vaccinations with the current emergency use one? But of course we are, as a "compelling interest in protecting health of "minors."
    Limited case facts and broad case decisions make for a future State knows best mess. The Court could have just said that; instead they said something that goes beyond this case.

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