The Best Interest Test in Real Life
A recent story in The New Yorker about parental conflict tells of a divorced West Virginia couple, the Harrocks, competing for custody and visitation rights for their children, with the question “Should the children be vaccinated?” driving both the story and legal dispute. The players are compelling. The mother, Leah, who opposes vaccination, is described as “crunchy” (what some might translate as “kooky” or as championing the “natural” lifestyle). The Harley-Davidson-driving father, Michael, shares his real life on his Facebook page, turning the family saga into dramatic material for his site.
Michael, no vaccine-lover himself, having refused the COVID vaccine, is pressing for routine preschool vaccinations for his children. But this issue is part of his larger quest: seeking more time with the children and control over their medical care. His middle son, Donnie, is wheelchair-bound with spinal muscular dystrophy, a progressive genetic disease that weakens his muscles and leaves him vulnerable to respiratory infections.
Mom won out, and the kids went vaccine-free. Then all three children became seriously ill; two were hospitalized with a preliminary diagnosis of measles. Measles tests came back negative, but the quirky backdrop exposes a deeper crisis: when divorced parents cannot agree on medical care, who decides what is best for their children?
Generally, the “best interest” of the child is the rubric courts use to decide child-rearing conflicts. [1] But that test is subjective. Courts and countries have disagreed on identical questions. So, at the end of the day, who decides what constitutes a child’s best interest—and how?
When Parental Rights and Children’s Interests Collide
The Supreme Court has long recognized parents' broad authority to raise their children as they see fit, grounded in the presumption that parental affection generally leads them to act in their children's best interests. But as the Court acknowledged in Parham v. J.R., that presumption is neither absolute nor a guarantee of sound judgment.
Occasionally, the parents’ intentions are detrimental. What happens in a divisive society where misinformation is rampant and parental decisions are co-opted by special interest groups? Or when the decisions require specialized knowledge that the parents don’t have? Or, as is not uncommon in divorce, the parents disagree?
Child-rearing conflicts often arise when third parties report parental misbehavior to the state or when parents divorce, and one parent’s claims are often part of a broader agenda: Often portraying the other as unfit to raise the child based on seemingly inappropriate medical decision-making or siding with the child’s wishes, as ill-advised as they may be, to get on the child’s good side. Michael Harrock called himself the “fun parent.”
When the State Steps In as Parent
Parens patriae, a legal term meaning "parent of the country," is a doctrine that grants the state the protective, paternal role over children when proper custody or prudent custodial decisions are otherwise lacking. If a court rules that parental decisions are harmful to the child, the state is empowered to take custody and control the child’s well-being, either permanently or temporarily. This situation frequently arises when Jehovah’s Witness parents refuse to consent to their child’s necessary blood transfusion. In those cases, a hearing is held, and after considering medical testimony, the judge may determine that, for a limited time, the child is considered a ward of the state. The transfusion is then administered with the state’s consent; afterward, control and custody revert to the parents.
In custody cases, especially when parents differ, the determinations may become thornier. In one Connecticut case, the teenage child of divorced parents, with her mother’s support, refused chemotherapy, saying she didn’t want to poison her body. The Department of Children and Families removed her from her mother’s custody, hospitalized her, and, with court approval, compelled forced treatment, holding that the teen was not competent to make her own decisions, and the mother’s approval of her actions was rejected by the court.
Ultimately, in cases of discord, a judge decides what constitutes the child’s best interest. What constitutes the best interest? This is essentially a subjective determination, although the parents could presumably call experts to testify that their viewpoint is the safer option.
Back to Measles
When it comes to measles, mainstream physicians recognize that vaccines carry rare risks but opine that the benefits of vaccination far outweigh any risks. Yet risk-benefit analysis is unique to each child, and one might argue that parents, who know their children best, are best suited to make that decision. In some cases, ill-informed parents may reject vaccination.
Other parents might choose not to vaccinate, relying instead on herd immunity, which occurs when approximately 95% of a community is vaccinated, leaving the virus little opportunity to spread. Their child avoids the rare risks of vaccination while benefiting from the vaccinations of others—a classic free-rider philosophy, in which one enjoys the contributions of others without contributing in return.
Whether parents consciously make this calculation, declining vaccination rates are eroding herd immunity and jeopardizing the health of all children. As vaccination rates decline, the risk of infection rises, especially for vulnerable, unvaccinated children like Donny Harrock. This reality [2] strengthens the expectation that the judge will require vaccination.
There is a large caveat here. Typically, these cases are brought in state court. Unlike federal judges, who have lifetime tenure, state court judges serve short, finite terms (averaging 6 to 8 years) and depend on their constituents' votes to seek reelection. In jurisdictions where the majority of constituents are anti-vax (mostly religious or ethnic enclaves, like Monsey, NY, in Rockland County, where the Haredi population has been extensively proselytized by anti-vax groups), we can expect judges to disavow vaccination, the best interest of the child notwithstanding.
An illustrative situation occurred during the 2018-2019 measles epidemic, seeded by two outbreaks: one with an epicenter in Brooklyn, and the other in Rockland County. Both jurisdictions adopted emergency measures effectively requiring vaccination, although their approaches differed slightly. In Brooklyn, the Board of Health mandated MMR vaccination [3] and imposed a steep fine for noncompliance. Rockland County excluded unvaccinated children from certain schools and public gatherings, effectively making vaccination a condition of participation in community life.
A Brooklyn judge ruled the mandate was constitutional; a Rockland County judge ruled it unconstitutional.
The country's political tenor also shapes both parental and judicial decisions. Before 2018, vaccination disputes were rare, and when they arose, most judges favored imposing childhood vaccine requirements. Today, the issue is murkier, and judges often decide that individual autonomy trumps societal needs.
The Mature Minor
One way to end the impasse is to allow children, if they are of mature “years and mind,” the opportunity to choose for themselves. Under the mature minor doctrine, many states offer this option, generally available to minors over 14. However, if a teenager’s decision does not align with a judicial determination of their best interest, the judge will find the child (even a 17-year-old) has not achieved the “maturity” needed to make an informed decision.
In other words, a judge may consider a teenager mature enough to decide only when the teenager's choice aligns with what the judge believes is in the child's best interest. If the judge believes vaccination is in the child's best interest, the teenager's agreement may provide grounds to defer to the child's wishes. But if the teenager opposes vaccination, even with one parent's support, the judge may instead conclude that the child lacks the requisite maturity and substitute the court's determination of the child's best interests.
At the end of the day, the Best Interest of the Child Standard is designed to protect the child. Yet vaccination disputes show how easily those interests can become entangled or hijacked by competing judicial, political, parental, or societal interests. When these are in conflict or parents disagree, the best-interests standard offers no easy answer.
Parental love does not guarantee sound medical judgment; judicial authority does not eliminate personal bias, and public health considerations, however compelling, do not necessarily resolve what is best for an individual child. The stakes extend beyond the family: a decision about one child’s vaccination implicates the welfare of all children, as well as fosters disease transmission to other vulnerable segments of society. Ultimately, the decision is a legal question; what guides that decision is far more difficult to assess.
The danger is that a standard designed to protect children becomes a vehicle for advancing other agendas. For Donnie Harrock, the question is not which parent prevails, which political position is vindicated, or even what best serves the community. It should be what the medical evidence tells us is best for Donnie.
[1] The “best interest” of the child is a legal standard courts use to decide a child's custody, care, and upbringing. Rather than focusing on what the parents want, this standard requires judges to decide which arrangement best supports the child’s safety, emotional development, and overall well-being.
[2] Failure to achieve herd immunity is evidenced by the fact that the country is experiencing an unprecedented measles epidemic (with 4,570 confirmed measles cases in 47 jurisdictions), illustrating the low vaccine rates and increasing the risk that any unvaccinated child will be infected, especially vulnerable children like Donny, leading to an expectation that the judge will require vaccination.
[3] subject to medical exemptions
Barbara Pfeffer Billauer JD MA (Occ. Health) PhD
Professor Barbara Pfeffer Billauer is an internationally recognized scholar of public health law, bioethics, and the laws of medical care, focusing on the integration of science and law and its impact on day-to-day policy and legal outcomes. She has lectured and published extensively, in scholarly journals and law reviews, and has written and edited seven books for lay and academic audiences.
