The divorce docket dated May 10 gave this order: "Both parents are to get vaccinated for COVID by end of this week." District Judge Travis Kitchens made the handwritten vaccine order, according to the Trinity County clerk's office.
"He pretty much told me and her both that we were to get a COVID vaccination," said Chris Staley. "I shook my head, and he said, 'I see that Mr. Staley doesn't agree with this.'"
The vaccine was listed as a requirement by the judge in order for Staley to have visitation with his kids, according to Trinity County court records.
"I didn't agree with it myself, and he pretty much told me that I guess I didn't want to see my kids," said Staley.
Staley lives in Cleveland, Texas, but has been going through a divorce via Zoom in Trinity County where his ex lives with their four kids.
"I just feel like my civil rights were kind of violated there, whenever a judge is ordering me to take a vaccination, like I said, that's not FDA-approved, and they really have no idea what the side effects could be down the road, you know – what it could do to me in a year or five years," said Staley.
The mRNA vaccines produced by Pfizer and Moderna, as well as the one-dose COVID-19 vaccine from Johnson & Johnson, are all approved by the Food and Drug Administration (FDA) under the emergency use authorization (EUA) protocol. (Related: Federal law prohibits mandates of emergency use COVID vaccines, tests, masks — 3 resources you can use to inform your school or employer.)
EUAs are granted to medications for which there is a perceived immediate need but which have not yet been through the rigors of a fully FDA-licensed drug. This renders EUA products experimental, with attending legal differences from their licensed counterparts.
The FDA states that as EUA products, each vaccine is "an investigational vaccine not licensed for any indication," and the agency requires that all "promotional material relating to the COVID-19 vaccine clearly and conspicuously … state that this product has not been approved or licensed by the FDA, but has been authorized for emergency use by FDA."
Staley felt he should have the right to see his four kids, ages 6 to 11, without a vaccine. "No underlying anything – they were perfectly fine," said Staley of his children's health.
He refused to get a COVID-19 vaccine despite the advice of his lawyer, Lana Shadwick.
Shadwick told Staley that Kitchens will be the one who's going to set his visitations and that it would be in his best interest not to upset the judge. "She pretty much said you probably should just go get the vaccine," said Staley.
Court records show the attorney withdrew from the case.
Staley is trying to reach Texas Governor Greg Abbott, who signed an executive order earlier this year "prohibiting state agencies or political subdivisions in Texas from creating a 'vaccine passport' requirement, or otherwise conditioning receipt of services on an individual's COVID-19 vaccination status."
The pandemic has become a factor in custody and visitation battles. Last year in South Florida, an emergency room doctor treating coronavirus patients was stripped of custody of her 4-year-old daughter. An appeals court quickly overturned the decision, and the child's estranged parents eventually resolved their custody disagreement.
The doctor's attorney, Steven Nullman, conceded that judges face a challenge when balancing parental rights and health concerns. "There are so many unknowns with this disease," he said. "Making the right decision is not easy."
Other cases followed across the country, the majority of which involved at least one parent working on the front lines of the health crisis.
Mask wearing has also figured prominently in some cases. For example, Broward Circuit Judge Dale Cohen won't let Melanie Joseph see her 14-year-old son because she won't wear a mask. (Related: Florida steals custody of child after mother observed not wearing mask in photo.)
Cohen called the mother an "anti-mask person" who had the "audacity" to brag about it on Facebook.
Joseph drew the judge's ire when she posted a picture of herself maskless in the waiting room of her oral surgeon's office in June last year.
"She's one of those anti-mask people and she's got the audacity to post that on social media," Cohen said. "She's going to wear a mask. If she doesn't, time-sharing is not going to happen."
Joseph acknowledged in an interview that she posted a selfie taken at her oral surgeon's office. "No mask for this girl," she wrote in the caption. But Joseph said that it happened in North Carolina where there was no mask mandate at the time, and that she was alone in the waiting room when she took the selfie without mask.
She accused the judge of letting his personal political views cloud his judgment in the case. "My case has been in the court system for a number of years and I have experience with court proceedings," she said. "What occurred is unconstitutional and should never happen to a parent."
Ultimately, the issue of masks never made it into Cohen’s written ruling.
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