A Cook County judge who took away a woman’s child custody rights because she hadn’t been vaccinated against COVID-19 rescinded that order Monday, but the legal battle appears set to continue.
Rebecca Firlit, of Chicago’s Pilsen neighborhood, said she and her ex-husband Matthew Duiven were in a child support hearing regarding their 11-year-old son Aug. 10 when Judge James Shapiro asked if she had been vaccinated.
When Firlit replied she had not — she told the Tribune she was bedridden and “sick as a dog” from previous vaccines and was advised by a doctor not to receive the shot — Shaprio suspended her parenting time “until (she) demonstrates sufficient proof to this court … of vaccination against COVID-19,” according to court documents.
Chicago’s WFLD-Ch. 32 news ran a story on Shapiro’s order over the weekend and on Monday the judge vacated it, citing precedents in which judges were restrained from changing custody agreements of their own volition.
A spokeswoman for Cook County Chief Judge Tim Evans said court rules mean neither Evans nor Shapiro can comment on the case.
Firlit’s attorney, Annette Fernholz, said Shapiro’s latest order “kind of invites the dad to bring the issue back before him,” and indeed, Duiven’s lawyer said he planned to file an emergency motion seeking to reinstate the first one (the motion did not appear in the electronic court record as of late afternoon Monday).
Attorney Jeffery Leving said his client had been planning to bring up his ex-wife’s vaccination status if the judge had not done it first. Rescinding the original order, he said, “is really concerning to me.”
He didn’t know of another case in which a judge denied parenting time to someone who wasn’t vaccinated against COVID-19, though other custody disputes have involved vaccines: In one recent New Jersey case, an appellate court sided with a father who wanted his daughter to receive typical childhood vaccinations over a mother who said she had religious objections to the shots.
In the Cook County case, the court has appointed a guardian ad litem to look out for the boy’s interests. That person could not immediately be reached for comment.
Firlit said her happiness over the judge’s change of heart was dashed when she heard her ex-husband intended to appeal. She said she has not seen her son since Aug. 8.
“I talk to him every night; he texts me during the days,” she said. “Sometimes he cries. I tell him it’s going to be all right.”
The onslaught of COVID’s delta variant has put a new focus on the risks to children under the age of 12, who are ineligible to be vaccinated. Dr. Eve Bloomgarden, an endocrinologist and chief operating officer of the advocacy group Illinois Medical Professionals Action Collaborative Team, said while the virus tends to hit adults harder than children, many kids still have been hospitalized in the recent surge.
Vaccination of all the adults in a child’s life is the best protection, she said, though she found stripping an unvaccinated parent’s custody rights too harsh an enforcement mechanism when encouragement might work better.
“It’s a very interesting ethical dilemma,” she said. “There are so many people who are not vaccinated yet, and there are certainly less aggressive interventions than tearing apart a mother and child.”
Family law experts interviewed by the Tribune said judges in similar cases must seek to achieve a difficult equilibrium.
Katharine Baker, distinguished professor of law at Chicago-Kent College of Law, said if parents can prove they are not getting vaccinated on their doctor’s advice, a judge would be unlikely to take away their parental time.
“The interconnected nature and relationships between the people involved make these questions complicated balancing acts,” she said. “(Firlit) can make the argument that if she gets very sick, that will have a detrimental effect on her child.”
Stacey Platt, clinical professor of law and associate director of the Civitas ChildLaw Clinic at Loyola University Chicago School of Law, said Shapiro was right to vacate his initial order, and that the process would be better served with a hearing where each side can present evidence.
If that happens, she said, the case would seem to offer plenty of complexity to wade through.
“There has to be a balance between a parent’s right to control her own health and a child’s right to safety,” she said. “It’s a hard decision. We are in the midst of a pandemic but almost every family I can think of is making certain safety compromises, including sending their children to day care or school or allowing them to play with playmates.”
Chicago Tribune’s Megan Crepeau contributed.
Twitter @JohnKeilman
