Asked and Answered . . .


Laurel Stuart-Fink on vaccinations

By Steve Thorpe
Legal News

The Michigan Court of Appeals, in an unpublished opinion dated July 14, ruled that the circuit court erred in a case where a mother did not want her daughters vaccinated and her ex-husband did. Attorney Laurel Stuart-Fink has been a family law practitioner for three decades. Active in the State Bar of Michigan Family Law Section, she is also former editor of the Family Law Journal.

Thorpe: Tell us about Kagen v Kagen and the recent Michigan Court of Appeals ruling.

Kagen v Kagen, Court of Appeals Docket No. 318459, was issued on July 14, 2015. Although unpublished, it has garnered a great deal of attention in the family court and bar because it addresses the hot button issue of compulsory vaccination of children against “standard” childhood diseases, where the appellate court actually evaluates the evidence that was presented in the lower court and resolves the vaccination issue by ordering that the children be vaccinated — a very proactive decision! However, the Court’s clarification of issues relating to hearsay and the relative reliability of various Internet sources is also significant and will provide future guidance to the trial courts. The Court of Appeals heard this case after initially remanding with instructions to the trial court to determine whether vaccinating the children was in their best interests, in light of the dispute between the parents who shared legal custody. This second appeal reveals the appellate court’s view as to specific types of evidence and whether such evidence is admissible, such as private sources on the Internet.

Thorpe: Childhood vaccination has been a hot topic lately because of high profile cases and celebrity advocates. How well has the law generally been dealing with the controversy and with balancing parental rights, children’s health and public safety?

It is important to realize that how these competing interests are balanced by the courts depends on the nature of the challenge being brought and the identity of the litigants. What I mean by this is that, for instance, in family court – where the Kagen case arose, you have joint legal custodians (the parents) disagreeing over whether vaccination against childhood diseases is in the children’s best interests. When parents share joint legal custody and cannot agree on an important issue affecting the health of the child, the job of making the decision lies with the family court judge. The family court’s mandate is to make a decision in the best interests of the minor child by evaluating the best interest factors enumerated in the Michigan Child Custody Act. Since the court must focus on the child’s best interests, it is not within the purview of the family court to balance parental rights and public safety, but only to focus on the child’s best interests.

On the other hand, if a school refused admission to a child based on lack of vaccinations, and a lawsuit ensued, the court would then have to grapple with parental rights vs. public safety, for instance. There have been a number of legislative initiatives throughout the country to attempt to deal with these difficult issues.

Thorpe: You wrote recently, “It appears that the appellate court is sending a clear message to the family court judges: the decision must be based on sound, scientific evidence and not simply the sensibilities of the parents.” The judges also had to interpret “hearsay” evidence rules. Explain.

The Kagen decision was actually the second time the appellate court had the case. On an original appeal, which had resulted in remand, the Court determined that the trial court erred by failing to consider certain reports offered by the father (proponent of vaccination) on hearsay grounds. The Court of Appeals had deemed reports from the Center for Disease Control, the National Institute of Health, the Food and Drug Administration and the Michigan Department of Public Health to all be reliable exceptions to the hearsay rule under MRE 803(24), and that the trial court erred by failing to consider them. In this second appeal, the Court of Appeals determined that, as to the rebuttal evidence presented by the mother, the trial court “completely abandoned its duty to assess the admissibility of the evidence.” The Court of Appeals then went on to rule that evidence presented from sources such as Wikipedia, private physician websites and advocate articles were unreliable and therefore inadmissible, as opposed to reports from government sources. The appellate court disagreed with the trial court that the relative reliability of these sources went to weight not admissibility.
It is interesting to note that the appellate court pointed out that certain Internet sources, such as and Wikipedia, contain their own disclaimers as to verifiability. Clearly, the Court of Appeals considered information directly provided from governmental sources to be reliable. This is consistent with what I have experienced in litigating a number of cases in the past few years. For instance, in family court cases where one parent contests the other’s decision to move the children to a new school district, the trial courts are likely to consider information provided from websites that are created by the school districts, or government-created websites with comparison statistics as to MEAP testing, for instance. On the other hand, in my experience, the trial courts will not consider websites comparisons of school districts created by private sources, often with a financial stake. This is the same type of reasoning we see from the Kagen Court.

Thorpe: This parental disagreement was mostly one of philosophy and opinion, but the mother also claimed a religious basis. Do you think this opinion will affect those conflicts that are mostly religious?

Family court judges prefer to avoid making decisions that implicate religious practices. The obvious choice is to let each parent make decisions on a child’s religious upbringing without judicial interference. Having said that, some family law attorneys report that in cases where the parents, while married, established a family history of raising the children within a certain religion, or attending religious school, or making decisions based on religious belief, the courts will rule in favor of keeping those lifestyle and value choices in place. It is reasonable to conclude that this flows from the analysis of a child’s best interests, which would presumably include providing stability by maintaining the lifestyle the child has always known. In cases where there is no family history of living within a particular religious framework, it is unlikely that religion will have any greater impact on a best interest analysis related to vaccination as any of the other statutory factors, and there are 12 such factors.

Thorpe: You are able to see both sides of the issue based on an experience with your own child. Tell us about it.

I have a 35-year-old son who almost died from the pertussis vaccine as an infant. It was terrifying – one of the longest nights of my life!
Obviously, there was no question that he would not have that vaccine ever again, based on medical advice. However, given the current climate and the polarization caused by this issue, I am left to wonder what would have happened if I were attempting to enroll my son in school now and could not demonstrate pertussis vaccination? Would schools be able to exclude him because medically he cannot have the vaccine? If not, how can a school exclude a child for not being vaccinated for religious – or other reasons, or for no reason at all? After all, it is not the reason for failing to vaccinate, it’s the lack of vaccination itself that matters in terms of public safety.

If anyone thinks that the reason for not vaccinating is the issue, in my opinion that supports the people who believe that government interference into making parenting decisions – like whether to vaccinate – truly has the potential to be a slippery slope. I am sensitive to the public health and safety issues, but I also feel wary of government telling us what chemicals we should inject into our children. We see this controversy with the HPV – human papilloma virus vaccine.

Thorpe: What’s next on this issue? Do you foresee courts being more aggressive?

I believe the Kagen Court is most significant in providing guidance to the trial courts regarding the analysis of hearsay evidence to determine its admissibility, and in particular, cases involving medical/scientific issues in dispute. However, as far as the issue of compulsory vaccination of children, it seems to me that we would most benefit from clear legislative mandate.