Last updated on November 27th, 2017 at 12:21 pm
On July 26, 2017 a Court of Appeals in Indiana interpreted a custody decree to require an unvaccinated child to be vaccinated. In doing so, it overturned an earlier, problematic ruling by a trial court. This case has important lessons for families in this situation, including the importance of the content of custody decrees, and – although it’s not clear from the decision – the importance of countering anti-vaccine, unreliable experts. It also rejected the use of a religious exemption to vaccines to prevent the child from being vaccinated.
The case
In 2007, two people had a brief affair that resulted in the birth of a baby girl. In 2011, the parents filed an “Agreed Decree of Paternity” – basically, a contract stating they are the parents and setting out the custody arrangement – with a trial court. The court accepted the contract, and turned it into an official judicial decision (“an order”). The Decree, as the court of appeals refers to it, includes the following provisions: “The parties shall share joint legal custody of [Child]… which shall be defined as follows: Mother must seek Father’s input prior to Mother making any major medical, religious or educational decisions for [Child].”
It also stated:
If the child attends a school that requires vaccinations for enrollment, and the child will be denied enrollment unless she receives the vaccinations, then the child will be given the required vaccinations for enrollment.
The child initially attended a Montessori School that did not require vaccines, and then went to a public school that did require vaccines. Under Indiana law, there is a religious exemption. The mom asked dad to agree to signing the form, but he did not. Mom signed a religious objection form anyway, and the unvaccinated child started attending the school.
On hearing the child will be traveling with mom, the father went to court and asked that child be vaccinated. In the meantime, his new wife had twin babies. One of the babies could not be vaccinated because of a serious health condition, and remained in intensive care in the hospital, where his unvaccinated sister could not visit, because of the risk to him. This meant both that the father, spending substantial amount of time with the fragile infant, could not see his daughter as often – and that the little girl could not meet her siblings. The court explained:
Father also alleged that he was unable to exercise overnight parenting time with Child because Child was unvaccinated and posed a risk to his infants.
The trial court held hearings. The baby son’s doctor spoke up for vaccines, and the mother presented two experts of her own. I do not know the identity of both, but one of her experts was Dr. Toni Bark.
Dr. Bark used to be a practicing MD, but since 1993 focuses on alternative medicine, especially homeopathy, an alternative medicine form with no scientific basis and which evidence shows doesn’t work. For over 20 years, therefore, Dr. Bark has not practiced evidence-based medicine. She has no serious scientific publications related to vaccines.
She is middle author on a letter to the editor on HPV vaccines. She is no expert on vaccine or infectious disease – or science-based medicine; she is an anti-vaccine activist. But if nobody told the judge, the judge would not know this, and apparently, the trial judge was swayed by the experts’ testimony.
The second expert witness was Tetyana Obukhanych, who, in spite of her Ph.D. in immunology, is also not a reliable expert.
The lesson here is that it’s important, in cases like this, for lawyers to know who the experts are. It would have been appropriate and correct to call out Dr. Bark’s lack of qualifications. It might be advisable for lawyers in custody cases involving vaccines to reach out to local or national immunization organizations that would (naturally) have a broader repertoire of knowledge regarding possible experts – both those who can support vaccines, and those who may be called on to oppose them.
The court explains:
On October 6, 2016, the trial court denied Father’s petition to modify custody, leaving the Decree unchanged. The trial court also denied Father’s contempt petition and related motion for rule to show cause, reasoning that Mother complied with the Decree when she claimed a religious objection to vaccinating Child. Finally, the trial court ordered Father to contribute $10,000 toward Mother’s attorney fees.
The father appealed.
The Court of Appeals’ decision:
The father challenged all three rulings.
The first claim addressed was the father’s claim that by not vaccinating the daughter when she entered public school, the mother was in contempt of the original decree. The appeal court explains: “To be held in contempt, a party must have willfully disobeyed a court order.”
The standard of an appeal court reviewing a trial court’s decision is very, very deferential on matters of fact – but reviewing the terms of a written contract is a matter of law, and on those types of issues, an appeal court does not need to defer to the trial court, and draws its on conclusions based on the document.
In this case, the court pointed to the fact that while the Decree gives the mother authority to make certain decisions by herself, and certain decisions – including medical, religious and educational decisions – after consulting the father, there is a specific exception for vaccines. When interpreting a contract, the norm is that specific provisions trump over general provisions. Therefore, the provision directly addressing vaccines is the one that governs, not the general provision about medical decisions.
The court also pointed out that once the child attended public school, she could only continue attending because her mother filed a religious exemption to vaccines. But the religious exemption to vaccines was in force when the parties made the agreement in 2011 – and if they intended it to be an exception to the provision requiring the child would be vaccinated, said the court, they would not include that provision at all – after all, the religious exemption is always available. Or at least, they would have said something in their contract, the one that became a decree. But they didn’t. Therefore:
Because there is no such exception in the language of the agreement and reading one in would void the provision, and because Mother’s wide latitude for decision-making is limited in this instance by the specific vaccination provision, the Decree accordingly requires that Child be vaccinated based on her school’s requirements.
The court is interpreting the decree to mean that the child should have been vaccinated in spite of the existence of a legal exemption. Even if the mother would otherwise be entitled to use the exemption, she cannot do so here, where there is a court order giving force to the agreement she entered into.
Under the law, therefore, which include the decree – the contract turned into court order – the mother is in contempt by not vaccinating the child while she attended public school.
Note that the court is not ruling that vaccinating is in the child’s best interest. It’s simply interpreting an existing agreement that addressed vaccination. It’s a very, very narrow decision.
The lesson for parents making a custody agreement is that if they can, they should address vaccines.
The father also claimed there was a substantial change in the circumstances that should have led to modification of the custody agreement. The mother’s choice not to vaccinate, which the court found in contempt of the decree, was “a substantial change in Mother’s ability to communicate and cooperate with Father in advancing Child’s welfare.” This, the court concluded, meant that it was in the child’s best interest to modify the decree. This part of the decision is remanded to the lower court to make the modification.
Finally, because the need for the proceedings resulted because the “mother contemptuously circumvented the Decree,” it’s an abuse of discretion to give the mother attorney fees, and the court should not have ordered the father to pay.
Result
The case ended with the court of appeals accepting the father’s claim that the mother was in contempt of court, ordering the child, in essence, vaccinated, and sending the case back for modification of the decree. However, the narrow scope of the decision, the focus on interpreting an explicit consent decree, limits its applicability to other cases. It has important lessons to teach, but is unlikely to have exact parallels.
The mother now has 30 days to appeal the decision to the Supreme Court, or it will become final.
However, even if the mother does not appeal, the story did not have a completely happy ending. While the proceedings were going, the child’s baby brother, who has been living for months in the hospital, in intensive care, bravely fighting his health problems, died.
The decision not to vaccinate the child meant that in addition to being left at risk of disease, she never got to meet her baby brother, missed the first year of her baby sister’s life, and was out of touch with her father for a long time. Even if she ends up being protected, she already paid a cost for the decision not to vaccinate, one that she can never recover.
Indiana Court of Appeals decision
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.
