A Chicago woman has secured the chance to see her child for the first time in weeks, after a Cook County judge rescinded his order suspending her rights to “parenting time” until she gets vaccinated against COVID-19.
But the case could mark a harbinger of what could face other unvaccinated parents embroiled in custody disputes in the weeks and months to come, said one of Illinois’ leading family law attorneys.
And such legal questions over the power of judges to order COVID vaccinations at the risk of losing parental rights could ultimately be ticketed for the Illinois Supreme Court.
Rory T. Weiler
| Weiler and Lengle P.C.
“I think you are going to see more litigation about it, yes,” said attorney Rory Weiler, of suburban St. Charles. “In the family law business, in my experience, when people find an issue they can argue about, they often do, and intensely, especially when child custody is involved.
“This is a new spin on an old issue.”
Weiler has helped parents navigate divorce and family law courts in the Chicago area for more than four decades, most recently through his firm Weiler and Lengle P.C.
Weiler serves as a fellow of the American Academy of Matrimonial Lawyers and is the president elect of the Illinois State Bar Association.
Weiler recently spoke with the Cook County Record, solely in his individual professional capacity, and not as a spokesperson for either the AAML or ISBA.
In late August, the Cook County family law courts in Chicago garnered national attention, when it was revealed Cook County Circuit Judge James A. Shapiro had stripped mother Rebecca Firlit of her parental rights to the 11-year-old son she shared with her ex-husband, solely because she had refused to receive the COVID-19 vaccine.
Firlit said she did not receive the vaccine because her doctor had advised her against it, citing underlying health conditions.
That order was issued Aug. 11. A little more than two weeks later, Firlit filed an appeal of that order with the Illinois First District Appellate Court, asserting Judge Shapiro had overstepped the limits of his judicial authority. She specifically noted the judge had issued the order, without ever receiving such a request from Firlit’s ex-husband, or even conducting a hearing on that question, denying Firlit the opportunity to defend herself.
After Shapiro’s initial order became public over the weekend of Aug. 27, public backlash to the order quickly became fierce.
On Monday, Aug. 30, Shapiro vacated his prior order, citing his failure to first conduct a hearing on the question of whether Firlit’s lack of COVID vaccination presented a danger to her child, under the law.
Then, on Tuesday, Aug. 31, Shapiro further recused himself from the case.
In a statement issued in court and shared by a spokesperson for Cook County Chief Judge Tim Evans, Shapiro said:
“Although I believe I can be fair and impartial, the Canons of Judicial Ethics speak to the perception of fairness and impartiality as well as fairness and impartiality itself. Public perception may be that I can’t be fair and impartial.
“Therefore, I am going to recuse myself from further proceedings in this case.”
The case has been transferred to another judge for further proceedings.
However, Firlit could yet face the prospect of losing her parental rights in coming weeks, should that other judge determine her refusal to be vaccinated against COVID represents a danger to her child.
And it could be a risk faced by many other unvaccinated parents who find themselves in court in a child custody dispute with another parent, who may hold a different view on the vaccine, said Weiler.
Weiler noted the issue of when courts should step in to questions of whether to vaccinate children is not new.
He recalled his experience more than 20 years ago, helping to litigate a case in which a mother, who was a Jehovah’s Witness, sought to prevent her ex-husband from having their child receive the measles, mumps and rubella (MMR) vaccine.
In that case, ultimately, the judge ordered the vaccine.
But a case in which a judge has ordered a parent to receive a vaccine presents a new wrinkle, he said.
In this instance, Weiler said it was “clear” Judge Shapiro overstepped his authority by issuing a ruling on such a “thorny legal question” without even conducting a hearing. He noted the term “endangerment” is a question that is defined in state law, so there are criteria to be met.
“Somebody has to ask the court to do something,” Weiler said. “A judge doesn’t have the authority to just issue an order, simply because he thinks it’s in the greater interest of the child.”
At a minimum, he said, a judge must “properly set the procedural table” before issuing such a ruling.
“I am vaccinated, my family is vaccinated, and personally I think everyone should get vaccinated,” Weiler said. “But the legal system is not designed nor intended to be a device to overcome the decision of an otherwise fit parent.”
However, in the wake of Judge Shapiro’s action, and the attention it received, he expects to see more parents use other parents’ opinions on the COVID vaccine against them in child custody disputes.
“Can a judge order someone, a parent, to get a vaccine? No,” said Weiler. “But courts do have latitude in protection children.
“And a judge could find a parent’s refusal to get the vaccine could present a question of whether that parent presents a serious threat of endangerment, and potentially could use that to intrude on a parent’s personal freedoms, or their personal space.”
A lawyer for Firlit’s ex-husband did not reply to an email sent by the Cook County Record.
However, the Chicago Sun-Times reported that lawyer, Jeffrey Leving, said he and his client, Matt Duiven, supported Shapiro’s ruling and he intends to file a motion seeking to use Firlit’s refusal to be vaccinated to win a court order producing the same results, stripping her of parental involvement in their son’s life.
As others may follow suit in other cases, Weiler said the question may ultimately fall to state appellate courts, if not the Illinois Supreme Court, to unravel.
“I expect the courts are going to be facing more and more disputes about this,” Weiler said. “It’s certainly the kind of issue that could work its way up to the (state) Supreme Court.
“It’s the kind of case the (state) Supreme Court would take on.”