• Alan Phillips JD
    6
    When parents separate or divorce and disagree about vaccinating, courts throughout the country will apply a "best interests" standard, to do what they feel is best for the kids based on the evidence, and in most instances, they will (or would) determine that vaccines are "best" for the children. However, it turns out that the law with vaccines in custody cases is *different* from all other custody disputes; exceptions apply! I've worked with over 100 family law attorneys nationally, and have not yet found one who understood how and why the law with vaccines is different before I explained it to them, but the vast majority have expressed strong appreciation once I did. From the courts' perspective, it's virtually always in a child's best interests to be vaccinated. Exempting parents want to bring in an alternative medical doctor to educate the court, but that doesn't work in the U.S., because courts don't decide the science, they weigh the evidence; and the majority of doctors, state and federal health agencies, and public policy generally, all profoundly favor vaccination. But if you have the right legal analysis and arguments, in most of these cases, the courts don't actually have authority to enter an order allowing or requiring vaccination of the minor children at all--but you have those arguments laid out in advance. A complete explanation is beyond the scope of a post here, but in brief, it concerns superseding Constitutional rights and superseding statutory law concerning state statutes and statutory construction rules where exemption and custody statutes conflict. I introduce the concepts in my e-book (www.vaccinerights.com).
  • Ellen S.
    1
    Mr. Phillips, Can you give your opinion on the news of Rebecca Bredow and if there's anything citizens can do to directly help her case?
    Thank you,
    Ellen
  • Alan Phillips JD
    6
    I can't offer legal advice here, and have to work with local attorneys when assisting in these kinds of cases. I have worked with over 100 around the country, and none have understood how and why the law with vaccines in custody cases is completely different from all other custody disputes. But the vast majority have agreed with my analysis after hearing it. The legal briefs setting out the full formal arguments can take more than 20 pages, but let me try giving a common-sense description of a couple of key pieces. The courts get their authority to decide custody disputes from state statutes. Well, so do parents who exercise an exemption. (There are no statutes telling courts that when parents disagree, every dad gets 2 nights/wk with the kids and mom gets 4; every kid in a custody case has to go to a public school instead of a private one; etc., but there **are** statutes requiring all kids to be vaccinated and providing specific exceptions...) If we assume that these statutes are in conflict (that the court's ruling under its authority from the legislature would necessarily be to vaccinate the parent's kids), we have to look to what are called statutory construction rules (that each state has) to see how to deal with those conflicting statutes. I have researched these rules in many states, and find that they are essentially the same everywhere, at least as far as I have ever needed to research them. These rules say that when statutes conflict, if one is specific and the other is general, the specific statute wins. The statute giving courts authority to to decide custody disputes is a general statute that says, effectively, "courts must decide custody disputes based on what's in the child's best interests," and the court has to look at evidence to determine that. However, the exemption statute is very specific, saying in effect; "If a parent does xyz, their child is exempt..." So, the specific exemption statute wins. There's a separate legal argument; where parents have religious objections to vaccines, their Constitutional religious freedom, a federal Constitutional right, trumps any state law--here, the state law giving state courts authority to rule on custody disputes. Religious isn't an absolute right; if there is an imminent risk of harm, according to the US Supreme Court, safety concerns trump religion. But routine vaccines concern hypothetical future disease exposure, so by definition, there is no imminent risk. So, in many of these cases around the country, there are 2 completely separate legal bases for the proposition that courts have no authority to order vaccines at all, let alone impose any penalties. But in my experience, family law attorneys and courts are clueless about this. They never consider the possibility that there might be a situation that is an exception to the usual way of doing things. As I'm the only attorney in the country who does what I do, if parents in these cases don't reach out to me in time, there chances of winning are slim to none. Worse, there are medical doctors dispensing erroneous legal advice so that they can be highly paid expert witnesses in these cases, but you can't win by having an alternative medical doctor testify, because for every one that will tell the truth about vaccines, there are 1,000 others who will disagree. Courts don't decide the science, the weigh the evidence. The majority of doctors, state and fed health agencies, and public policy generally profoundly favor vaccines. Court do NOT like leaving kids unvaccinated--they don't want to be responsible for a child dying of measles. So, you have to explain why the law **prevents** them from ordering vaccination--and even then, many will ignore the law out of fear of losing the next election (because a kid they allowed to go unvaccinated died from measles, etc.)
  • Alan Phillips JD
    6
    When clients and their attorneys are willing to hear my input, I am happy to offer it, and the local attorney and client ultimately decide whether to use any or all of what I have to offer. As a general rule, legal problems require legal solutions, so I don't see how the public can do anything to help people in legal trouble, but public outcry about a perceived abuse of power could potentially help raise awareness of the vaccine issue, generally, and who knows what else? I'm not offering legal advice about any specific case (and couldn't outside of NC with my NC license); but who knows what might happen when we resort to "out of the box" actions. We're all in uncharted territory here...
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