Serious times involving serious health risks bring about serious issues when children of a marriage are perceived by the courts to be endangered by the attitudes of a parent that oftentimes defy common sense, empirical data and the recommendations of governmental agencies invested with the obligation of informing and protecting the public at large. A headline in the Los Angeles Times of Jan. 18, 2022, blares out a warning in question form: Coronavirus Today: No vaccine, no custody? That newspaper's science and medicine editor, Karen Kaplan, concentrated her article, in part, on published court decisions throughout our country which have focused on the risks to children where one parent refuses to become vaccinated against COVID-19 and the other parent is vaccinated, as well as on questions of whether one parent may cause a child to be vaccinated over the objections of the other parent. See also Catherine E. Shoichet, How COVID is making divorce cases more complicated, CNN (Jan. 30, 2022).

Two of the more prolific authors of judicial opinions in the divorce and family law fields, then Justice Richard A. Dollinger of Monroe County Supreme Court and then Justice Matthew F. Cooper of New York County Supreme Court not surprisingly issued opinions involving this controversial topic. In early October 2021, Justice Cooper wrote about whether the de facto custodial parent, the mother, could condition the father's already limited and supervised access time with their three-year-old child by insisting that he and the supervisor be vaccinated or that they submit to testing prior to each access period. His opening paragraph signals the direction in which his decision was headed: "Throughout most of modern medical history, the advent of a vaccine was almost universally embraced as a means of protecting ourselves and our children from deadly or debilitating disease …., most people, heeding expert medical opinion, have availed themselves of vaccines that promise not only to protect them and others from the ravages of COVID-19, but ultimately to completely vanquish the virus. Unfortunately, and to my mind, incomprehensibly, a sizeable minority, seizing upon misinformation, conspiracy theories, and muddled notions of 'individual liberty,' have refused all entreaties to be vaccinated." Justice Cooper then goes on to require, in the child's "best interests," that the father and anyone supervising his access be vaccinated or undergo regular testing. In reaching this conclusion, the Justice opines: "In the final analysis, the fundamental question in this dispute between the child's two parents is this: What matters more to each of them, his or her own interests or those of their child? On one hand, there is the defendant father, who is unable to offer any reasonable, let alone compelling, reason why he should not be vaccinated or even undergo testing, resisting … both simply because he sees it as his 'right' to do so. On the other hand, there is the plaintiff mother, who is fully vaccinated and observant of COVID-19 protocols, seeking the imposition of reasonable conditions on defendant's access not because it somehow benefits her, but because it serves to protect the health, safety, and well-being of the child." C.B. v. D.B., 73 Misc.3d 702 (Sup. Ct. N.Y. County 2021).