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With COVID vaccines now authorized for children ages 5 and up and Pfizer’s application for children ages 6 months to 4 years pending, parents are faced with making an important healthcare decision — whether their child should receive the COVID vaccine and who gets to make that decision.

For parents in contentious custody situations, the court considers each parent’s stance on vaccines within the larger context of custody and decision-making. Which parent can best provide sound decision-making for the child’s medical needs?

Traditionally, vaccines have addressed diseases that largely affect children. COVID vaccines, on the other hand, address a virus that has not significantly impacted children.

COVID has moved the issue of vaccine administration out of what until now was primarily the school enrollment scenario to a broader arena encompassing adults, and therefore, the judges who make custody decisions. COVID has made this issue personal.

How should parents who don’t want their children to receive COVID vaccines navigate this issue?

There are many ways to approach this subject if you don’t want your child to receive a COVID vaccine.

There also are several factors to consider including whether your divorce has been finalized, whether a current parenting agreement is in place, who has authority to make healthcare decisions for the children and what state has jurisdiction over your child custody matters.

In most states, courts favor parents having joint legal custody of their children. While the phrase “joint legal custody” sounds simple — the parents are equal, each having the same say in the lives of the children — it is really the language on how decisions will be made and how an impasse is resolved that determines who has the right to make the decision.

If the parents cannot come to a consensus on whether their child should be vaccinated, most parenting agreements provide a mechanism for resolving the disputes.

The parenting agreement can stipulate that the parents mediate the issue, requiring the issue be presented to a neutral third party — typically a person would be named in the agreement — to assist the parents in reaching a decision.

The parenting agreement can require the parents to consult with the child’s medical professionals, pediatricians, etc. The decision then rests with the parent who agrees with the child’s medical professionals.

This is where a parent needs to carefully choose the child’s medical team as the decision regarding vaccination may be made at this point.

If the matter is taken to a judge for decision, typically the judge does not set forth what a parent should or should not do, such as administer or not administer a vaccine. Rather, the judge determines which parent is granted the decision-making power for the child’s medical needs.

If a parent has been granted sole legal custody of the children, that parent can make a decision to have the child vaccinated without authorization from the other parent. In that scenario, the parent who does not have the ability to make decisions would have to petition the court and demonstrate to the court why the decision made by the parent is not in the child’s best interest, or may even place the child at substantial risk of harm.

The parent can petition the court for a change of custody by demonstrating a substantial change of circumstances from the prior decision granting the other parent sole custody.

Preserving your decision-making authority through a parenting agreement

If you’re not yet divorced and are in the process of creating a parenting or marital settlement agreement, now would be the ideal time to address the issue of COVID vaccines.

Addressing this issue in the parenting agreement now will reduce the chance of future litigation, or at least help to avoid a drawn-out court battle later.

There are several ways you and your legal counsel could approach this issue:

  • Both parties can agree to include a provision in the agreement that the child will not receive any COVID vaccines. This is the best option.
  • You can request legal decision-making authority for the issue of COVID vaccines, perhaps compromising with the other parent by agreeing that they will have decision-making authority in another area of importance.
  • You can request healthcare decisions be made jointly through consultation between the two parents, but reserve the ability for you alone to make the final decision if the two of you can’t come to an agreement.
  • You can request full legal decision-making authority on healthcare decisions. This is hard to achieve unless one parent does not want decision-making authority or unless you can demonstrate the other parent is incapable of making healthcare decisions.
  • You can request joint decision-making authority, with the right to petition the court in the event that neither party can come to an agreement. You can also request mediation as a prerequisite to being able to file an action in court.
  • Both parties can agree the child will not receive any vaccines unless they are mandated or required to attend school.
  • Both parties can agree their children will utilize a medical, religious or philosophical vaccine exemption if allowed by state law.
  • The parties can agree a child will not receive a COVID vaccine until a specific age is agreed upon by both parties.

Additionally, a parent can recommend that a certain pediatrician or family practice doctor provide medical care for the children. This would allow you to select a physician who is mindful of a parent’s choice and who could play a key role in any future healthcare disputes.

Using mediation to inform the other parent about COVID vaccines

It is often helpful for both parents to understand why they may disagree about their child receiving a vaccine and determine if there is a way to compromise.

At the same time, many parents find it difficult to communicate with each other, especially about controversial issues like vaccines.

Mediation might provide the perfect forum for a conversation about vaccines. Mediation is a process wherein the parties meet with a “mutually selected impartial and neutral person” who assists them in discussing and negotiating their differences.

Many states require mediation to resolve disputes between the parties and help them facilitate a parenting agreement without the intervention of the court.

Mediation is also sometimes a prerequisite that must be completed before bringing an unresolved issue to the attention of a judge.

This process allows you to present your viewpoint and any science behind your position to the other parent in a more formal environment. You may also be able to achieve the wording of the provision you want through negotiations or compromise with the other parent.

If after mediation, you still cannot come to an agreement with the other parent, the decision as to who has legal decision-making authority and specifically, who will have the right to determine whether your child should be vaccinated, will be decided by the court.

What if your existing parenting agreement pre-dates COVID?

Many parents are already divorced and do not have a provision related to COVID vaccines in their current parenting agreement. This creates a unique problem ripe for litigation.

Reserving the issue of COVID vaccines for litigation in court can be costly and time-consuming. Both sides will present experts and provide testimony, and the bias of some judges may lead to decisions that do not favor the non-vaccinating parent.

It is always best, if at all possible, to resolve disputes over vaccines outside of court.

If the issue must be litigated, courts are hesitant to get into arguments of vaccine safety and efficacy. What they want to know is whether you’re capable of making healthcare decisions or if there’s a dispute, which parent’s wishes should prevail.

The first step to addressing this issue is to refer to your parenting agreement — or dissolution of marriage document — on who has decision-making authority over healthcare matters, and what remedy is listed if the parties cannot come to an agreement.

If healthcare decisions are to be made jointly, then one parent does not have the right to subject the child to a medical procedure without the authorization of the other parent.

If a dispute arises and the parties cannot come to an agreement, a petition will have to be filed in court to modify parental responsibilities based on a significant change in circumstances.

Most courts have held that the issue of whether or not a child should receive a COVID vaccine is an issue justifying court intervention.

Once the court agrees to hear the matter, you will have to argue why you should have decision-making authority over whether your child should receive a COVID vaccine.

Parents should keep the court focused on which parent has been the primary parent when it comes to decision-making, especially with regard to medical issues.

If the other parent has greatly acquiesced to the other parent’s decision-making during the years the parents were together, that should be strongly considered by the court.

If possible, it is better to settle this issue outside of court, as a judge is likely to grant the authority to make decisions to the parent who is pro-vaccine, especially if they can demonstrate the other parent is not capable of making healthcare decisions.

In addition, the court will want to hear from the established pediatrician or family practice doctor to determine what is in the best interests of the children.

We encourage you to reach out to a licensed family law attorney in your state with any custody-related questions you have, as this article does not constitute legal advice.