CHICAGO | LAKE FOREST | WHEATON sdflaw.com
SPRING/SUMMER 2021
The Future of Family Law Since 1981
IN THIS ISSUE A Role for Virtual Court In A Post-Pandemic World (page 3) Jay P. Dahlin
Who Will Side With Who In Conflicts Regarding Covid-19 Vaccines? (page 6) Meighan A. Harmon
Vaccines And Children: What Happens When Parents Disagree? (page 9) Kara L. Francis
A Role For Virtual Court In A Post-Pandemic World
Jay P. Dahlin | jdahlin@sdflaw.com As we emerge from our pandemic lockdowns, in person legal proceedings are poised for a comeback. But the past year has shown us that some aspects of virtual court should be here to stay. The concept of a remote court appearance did exist prepandemic. The Illinois Supreme Court Policy on Remote Court Appearances in Civil Proceeding (May 2020) notes that remote appearance pursuant to Supreme Court Rules 45 and 241 “provide many benefits to case participants, including judges and court personnel, while creating easier access to our court.” Such benefits include the decreased time and expense of appearing in court, increased accessibility to the court for disabled, elderly, hospitalized, incarcerated or distant parties and witnesses. Remote appearances allow attorneys to provide services in large geographic areas (often appearing in multiple counties on the same day), and reduces the number of people in the courthouse. Yet pre-pandemic the option was rarely used, and was primarily utilized for out-of-state witnesses to testify via video conference. The last year has given us the opportunity to put the virtual court concept to the test on a broadly scaled, full time basis. The results have been mixed. Some legal proceedings are without question more efficient and effective via online appearances. Initial appearances on routine motions, scheduling conferences, status appearances and the like can be summarily dealt with via Zoom from the attorney’s office in a matter of
minutes, and should stay that way going forward. Whereas before an attorney would spend an hour traveling to court, navigating security, physically appearing in court, waiting for a case to be called, addressing the court, waiting for an order, then returning to the office; that same attorney can now log on from their office at the designated time, spend five minutes on video dealing with the scheduling/status, then log off to return to other tasks. The savings in time and cost is enormous and more importantly nothing is sacrificed in terms of the content and quality of representation given the limited, logistical scope of these appearances. On the other hand, evidentiary hearings and traditional trials – appearances where witnesses take the stand and testify on record - must be returned to in person appearances to the fullest extent possible. Effective administration of justice and due process requires the physical presence of judges, attorneys, parties and witnesses before the court to assess credibility, and to review and consider evidence and testimony. Video conference technology is a poor substitute for sitting in a room with a witness and determining if they are lying or not. While virtual court appearances for individual witnesses who may be located at long distances or otherwise disabled and unable to physically attend court will continue to be a more efficient method for presenting testimony, witnesses that can be physically present should be. Further, video conferencing is highly limited in its capability to deal with voluminous records and documentary evidence that must be presented, discussed and analyzed in trial. Screen sharing may be fine for dealing with 2 documents. It does not work with 200
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A Role For Virtual Court In A Post-Pandemic World documents. The effective flow of a trial proceeding – with objections, arguments and real time due process is all but done away with on video to the detriment of the effective presentation of a litigant’s case. In between these two extremes is a grey area consisting of non-evidentiary and summary proceedings such as hearings on temporary relief, pretrial conferences, settlement meetings and mediation. The merit of the virtual courtroom is variable in these situations, as the virtual court model can create a conflict between efficiency and effectiveness. Generally, appearing virtually to present legal arguments on a motion or to negotiate a settlement is more efficient via the virtual courtroom. But that efficiency may ultimately run afoul of effectiveness in resolving matters over the long term. The downtime and facetime that attorneys and parties are compelled to sit through during in person court sessions are, in a practical sense, where many cases are brought to settlement. Physical engagement is an opportunity for conflict resolution without the intervention of the court, as more cases have settled in the hallway outside the courtroom than inside it. The “log on/ log off” nature of virtual court eliminates this crucial window for settlement, and as a result more cases proceed to contested hearing which ultimately bruises egos, entrenches positions and results in more litigation over time. An additional consideration when deciding whether to participate in virtual court is the skill set that any individual attorney brings to a matter. Some attorneys are more theatric in nature and will present a more effective argument in person. The virtual courtroom may blunt the effectiveness of the theatrical trial lawyer, while enhancing the effectiveness of a more soft spoken, academic lawyer who takes advantage of the structural confines of the virtual court appearance to limit the “show” put on by opposing counsel and to focus attention on the facts and law. In this regard, clients and their counsel should critically assess their case and the skills brought to the table before making a decision as to whether to proceed in person or virtually when the option to proceed either way is available. So as we lift our lockdowns and return to a semblance of normal life, let us use virtual courtroom technology going forward as it best fits into the balance between efficient process and effective administration of justice.
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Who Will Side With Who In Conflicts Regarding Covid-19 Vaccines?
Meighan A. Harmon | mharmon@sdflaw.com The vast majority of parenting agreements these days provide for joint parental decision making regarding medical issues. With Covid-19 vaccines becoming increasingly available and approved for children age sixteen an older (and clinical trials underway for vaccinations for children as young as twelve—and the possibility of the vaccines being available for these younger children prior to the start of the 2021-2022 schoolyear), many parents will be faced with the decision regarding whether or not to vaccinate their children for Covid-19. What then happens if parents with joint medical decision making do not agree that they should vaccinate their children?
Across the Country, much of the reported case law in cases where parents disagreed and then litigated the issue of vaccinating their children has fallen in favor of the parent advocating for vaccines. See e.g.: B.C.S. v. T.S.S., 121 A.3d 1137 (Penn. 2015), Mother’s antivaccination stance was deemed ‘unorthodox’ and a display of ‘poor judgment’ by the trial court, which awarded the father sole medical decision-making authority. The case was affirmed by the Pennsylvania Supreme Court. Garcia-Udall v. Udall, 141 S.W.3d 323 (Tex.App. 2004), The Texas appellate court upheld the trial court’s decision to give the father sole medical decision-making over vaccines when the mother was against vaccinations. Gammon v. Gammon, 529 S.W.3d 350 (Mo.App. 2017), The Missouri appellate court upheld the award of sole medical decision making to the father, against the mother’s anti-vaccination wishes. In re: Marriage of Botofan-Miller & Miller, 406 P.3d 175 (Or.App. 2017), Oregon courts went even further and upheld the trial court’s order that required that the parents “ensure that a proper vaccination schedule is in place”, rather than simply giving one parent decision making power. As it relates to the Covid-19 vaccine, the issues present are similar but may be somewhat different. The above case law addresses instances in which a parent objected to “typical” and long standing childhood vaccine protocols which have been commonly used and tested for many years. The Covid-19 vaccines that are available are due to an “Emergency Use” authorization and the testing and clinical trials were very limited given the urgency of the need for an immediately available vaccine to stem the tide of Covid-19. At least one of the vaccines, that was manufactured by Johnson and Johnson, was temporarily pulled off the market due to reports of serious side effects. In addition, the
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Who Will Side With Who In Conflicts Regarding Covid-19 Vaccines? “typical” vaccines (i.e. DTaP (for Diptheria, Tetnus, Whopping Cough), Polio, MMR (Measles, Mumps, Rubella) and Chicken Pox) given to children are usually a requirement for school enrollment (with certain exceptions available for medical or religious reasons on a case by case, jurisdiction by jurisdiction basis--See a fascinating forthcoming DePaul Law Review Article by our soon to be new Associate, which discusses medical decision making rights within the context of a parent’s religion: Gabrielle Kahn, Determining Legal Custody in a Divorce Proceeding: When the Health of a Child Hinges on Their Parents’ Religion, 70 DEPAUL L. REV. (forthcoming 2021). While some colleges and Universities have already announced a Covid-19 vaccine requirement for the 2021-2022 schoolyear, very few High Schools have yet announced similar requirements. In addition, the “typical” vaccines are for highly contagious diseases or diseases that are particularly dangerous or fatal to children. However, the hospitalization and mortality rates with Covid-19 in children under the age of 18 are substantially lower than for adults. If the Court’s follow the historic trends, we can expect to see Judge’s siding with a pro-vaccine parent in conflicts over Covid-19 vaccines. However, there are significant differences between Covid-19 vaccines versus the “typical” childhood vaccines which may give rise to arguments against requiring the vaccine where parents do not agree. This will be an interesting issue to watch in the coming year.
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Vaccines and Children: What Happens When Parents Disagree?
Kara L. Francis | kfrancis@sdflaw.com
Earlier this month, the U.S. Food and Drug Administration authorized use of the Pfizer COVID-19 vaccine for children aged 12 and older. Moderna also recently announced that its COVID-19 vaccine strongly protects children as young as age 12, and it will be submitting its teen data to the U.S. Food and Drug Administration early next month. Further, both Pfizer and Moderna are continuing to study their respective vaccines in trials of children aged 6 months to 11 years and expect to have data regarding same by the end of the year. Although fewer children have been infected with COVID-19 compared to adults, children can still be infected with the virus that causes COVID-19, get sick from COVID-19, and spread COVID-19 to others. As such, the CDC is recommending that everyone aged 12 years and older gets vaccinated to help protect against the virus and stop the pandemic. However, whether a child gets vaccinated is ultimately a decision that must be made by his or her parents. Which begs the question for family law practitioners: What happens if parents disagree on whether their child should get the COVID-19 vaccine? Post-Decree If the case is post-decree, the first step is to review your client’s Allocation Judgment and determine which parent has decision-making for the child’s healthcare. If the parties share joint decision-making and cannot agree on whether the child should get the vaccine, then they must follow the dispute resolution procedure set forth in their Judgment, which likely includes a mediation requirement before either party can seek relief from the Court. In that case, the parties should schedule mediation immediately.
It is also possible that one party has sole decisionmaking, and you represent the other party who does not agree to the decision (for example, Mom has sole decision-making and does not want the child to be vaccinated, and you represent Dad, who does want the child to be vaccinated). In that case, then your client can file a petition to modify the Judgment under Section 610.5 of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) and request that he or she be allocated sole decision-making with respect to vaccination (or healthcare generally, as the case may be). If more than 2 years has passed since entry of the Judgment, the court is required to modify the allocation of decision-making if it finds by a preponderance of the evidence that, on the basis of facts that arose after the entry of the Judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or of either parent, and thus modification is necessary to serve the child’s best interests. 750 ILCS 5/610.5(b). Certainly, parties who entered into their Judgments prior to 2020 could not have anticipated the
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Vaccines And Children: What Happens When Parents Disagree? Nonetheless, modifying decision-making within 2 years of the entry of Judgment would undoubtedly be a more difficult path, in comparison to the preponderance of the evidence standard that applies after 2 years has passed. There is at least one reported case in which the Appellate Court for the Third District affirmed the trial court’s allocation of decision-making for healthcare to the father, in part because the mother was primarily responsible for failing to secure routine wellness checkups for the child, including vaccines. See Jameson v. Williams, 2020 IL App (3d) 200048. See also Lulay v. Lulay, 193 Ill.2d 455 (2000), where the Supreme Court cited the Massachusetts case of Prince v. Massachusetts, 321 U.S. 158 (1944), for the proposition that, while parents have the fundamental right to raise their children, the state, acting as parens patriae, may restrict parents’ control by such things as mandating vaccination. onset of the COVID-19 pandemic, let alone have determined whether their child would receive a vaccine that did not even exist yet. Depending on the facts of the case, one could argue that the pandemic and the child’s vaccination are a substantial change in circumstances and that modification of the Judgment is necessary to protect the child’s best interests. Bear in mind, however, that if a party brings a petition to modify decision-making within 2 years of the entry of Judgment, the party must first satisfy the threshold requirement of showing – via affidavits – that there is reason to believe the child’s present environment may seriously endanger his or her mental, moral, or physical health or significantly impair his or her emotional development. If that threshold requirement is satisfied, then the party must go on to prove that there has been a substantial change in circumstances and that modification is necessary to serve the best interests of the child. 750 ILCS 5/610.5(a). In interpreting former IMDMA Section 610, the Supreme Court held that if a petition is brought within 2 years of the entry of Judgment, the petitioning party must prove a substantial change in circumstances and the necessity of modification by clear and convincing evidence. See Department of Public Aid ex rel. Davis v. Brewer, 183 Ill.2d 540, 554 (1998). It is unclear whether this heightened burden of proof still applies under the current version of IMDMA Section 610(a).
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Pre-Decree If the case is pre-decree, and the parties cannot agree on whether to vaccinate the child, there are several options. First, assuming an Allocation Judgment has not yet been entered, your client can file a motion seeking to be allocated temporary decision-making responsibility pursuant to IMDMA Section 603.5. However, the court can only order a temporary allocation of decisionmaking after a hearing and after consideration of the factors set forth in Section 602.5 of the IMDMA. If the child does not already have a Guardian Ad Litem or Child Representative, then the Court would likely appoint one to represent the child as it relates to the dispute, to either recommend or advocate (as the case may be), whether vaccination is in the child’s best interests. In sum, while everyone is hopeful and excited to be able to return to “normal” activities and lifestyles following the pandemic, the issue of whether children should receive a COVID-19 vaccine may need to be addressed by many divorced and divorcing parents. It is important that parents discuss this issue sooner rather than later, because if there is a dispute that must work its way through the court system, time is of the essence given the impending summer break from school and the potential for children to return to in-person learning this fall.
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